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BIOGRAPHICAL    STORY    OF 
THE    CONSTITUTION 

A  STUDY  OF  THE 
GROWTH  OF  THE  AMERICAN  UNION 


BY 

EDWARD  ELLIOTT 

PROFESSOR  OF  POLITICS  IN   PRINCETON  UNIVERSITY 


G.  P.  PUTNAM'S  SONS 

NEW     YORK    AND    LONDON 
^be  Ikntcfierbocher  prees 

1910 


Copyright,  igio 

BY 

G.  P.  PUTNAM'S  SONS 


Cbe  ftnfclterbocfier  press,  t\cvo  JOotlt 


MY  MOTHER 


Preface 

MR.  BRYCE  has  remarked  that  "the  Constitu- 
tion of  the  United  States  (including  the 
amendments)  may  be  read  aloud  in  twenty-three 
minutes."  Its  brevity  required  that  it  should  be 
general  and  only  the  framework  of  government  could 
be  outlined.  The  powers  of  the  Federal  Government 
were  enumerated,  but  their  extent  was  left  for  future 
determination  through  interpretation. 

This  fact  has  made  it  possible  for  the  Constitution 
to  be  adapted  to  the  ordinary  needs  of  the  national 
life.  At  times  of  crises,  as  in  the  Purchase  of  Louisi- 
ana and  the  Civil  War,  the  bounds  of  interpretation 
have  been  passed  and  the  Constitution  has  been 
stretched  to  fit  the  occasion;  recently  we  have  heard 
of  the  need  of  "  finding  "  constructions  that  will  en- 
able the  Federal  Government  to  meet  the  exigencies 
of  new  conditions. 

The  history  of  the  Constitution  is  chiefly  concerned 
with  the  processes  of  interpretation  and  adaptation. 
The  life  of  the  nation  does  not  stand  still ;  new  ideas, 
feelings,  conditions,  and  forces  are  constantly  driving 
it  forward,  and  no  immutable  instrument  of  govern- 
ment will  suffice;  the  Constitution,  too,  must  grow, 
and   as    the   formal   process   of    amendment   is   too 


vi  Preface 

difficult  for  ordinary  purposes,  principles  of  inter- 
pretation have,  in  large  measure,  taken  its  place. 

The  present  work  does  not  seek  to  deal  with  the 
finely  elaborated  doctrines  of  the  courts,  but  rather 
with  the  larger  questions  of  constitutional  interpre- 
tation, many  of  which  lay  beyond  the  jurisdiction 
of  any  court.  These  questions  have  been  fought  out 
between  men  and  this  Biographical  Story  of  the 
Constitution  attempts  to  picture,  through  the  lives 
of  some  of  the  more  conspicuous  of  these  contestants, 
the  struggle  and  its  result. 

The  difficulties  of  this  method  of  treatment  are 
considerable;  there  is  danger  of  over-emphasizing  the 
part  played  by  particular  individuals,  of  neglecting 
that  taken  by  others,  and  of  slighting  the  economic 
and  social  forces  that  have  been  at  work;  yet  the 
increased  interest  which,  it  is  hoped,  will  come  from 
the  introduction  of  the  personal  element  may  offset 
these  disadvantages.  The  book  will  have  served  a 
useful  purpose  if  it  awakens  a  further  interest  in 
the  subject  of  our  constitutional  history,  or  throws 
light  upon  the  general  features  of  our  national  life 
at  a  time  when  there  is  great  need  for  a  proper 
understanding  of  the  relationship  of  a  written  and 
rigid  constitution  to  the  forces  of  that  life. 

An  appendix  has  been  added,  composed  of  docu- 
ments illustrative  of  the  principal  points  around 
which  the  conflict  of  opinion  has  been  hottest.  A 
study  of  these  documents,  it  is  believed,  will  give  a 
truer  insight  into  the  thought  of  the  times  which 
produced  them  than  can  be  had  in  any  other  way. 

I  wish  to  express  my  thanks  to  my  colleagues, 
Professors   W-  M.   Daniels  and   E.    S.   Corwin,   for 


Preface  vii 

their  kindness  in  reading  parts  of  the  manuscript, 
and  to  Professor  Edgar  Dawson  for  reading  the 
whole  of  it.  They  are  not  responsible  for  the  opin- 
ions expressed,  but  I  am  indebted  to  them  for  many 
helpful  suggestions. 

E.  E. 

Princeton,  N.  J.,  June,  1909. 


Contents 

CHAPTER  PAGE 

I.    The    "Fathers";       Inception    through 

Compromise 1 

II.     Alexander  Hamilton:     Growth  through 

Administrative  Organization      .        .        27 

III.  James  Wilson  :     Growth  through  Specu- 

lative Forecast 53 

IV.  Thomas    Jefferson:      Growth    through 

Acquiescence 77 

V.    James  Madison  :  Growth  through  Formu- 
lation      101 

VI.    John  Marshall:   Growth  through  Legal 

Interpretation      .        .        .   •     .        .      125 

VII.    Andrew  Jackson  :     Growth  through  De- 
mocratization         147 

VIII.     Daniel  Webster:     Growth  through  Ris- 
ing National  Sentiment     .        .        .       167 

IX.    John  C.  Calhoun:   Retardation  through 

Sectional  Influence    ....       189 

X.     Abraham     Lincoln:       Growth    through 

Civil  War 209 


Contents 


CHAPTER 

XI.    Thaddeus  Stevens:   Growth  through  Re- 
construction .... 

XII.     Theodore    Roosevelt:     Growth    through 
Expansion 


Appendix 

The  Declaration  of  Independence,  1776 
Articles   of   Confederation,    1781     . 
Constitution  of  the  United  States,  1789 

Jefferson's  Opinion  on  a  National  Bank 
1791 


Hamilton's  Opinion  on  a  National  Bank 
1791 


Kentucky  Resolutions  of  1798  . 

Virginia  Resolutions  of  1798  . 

Abstract  of  Decision  in  Case  of  Marbury 
V.  Madison,  1803    .... 

Amendments  Proposed  by  Hartford  Con 
ventiou,  ISll  .         .         .         . 

South   Carolina   Ordiuauce   of  Nullifica 
tion,   1832 

Jackson's     Nullification      Proclamation 
1832 


Abstract  of  Dred  Scott  Decision,  1857 

South  Carolina  Ordinance  of  Secession 
1860 


229 

251 
271 
273 

279 
292 

315 

318 
326 
332 

335 

337 

340 

345 

362 

368 


Contents  xi 

PAGE 

Appendix — Continued 

South  Carolina  Declaration  of  Indepen- 
dence, 1860 361) 

Proclamation  of  Emancipation,  1863      .  374 

Bibliography 377 

Index 385 


"The    Fathers."      Inception   through 
Compromise 


CHRONOLOGY  OF  CONSTITUTIONAL  CONVENTION 

1787.     May  14.  Appointed  time  of  meeting. 

May  25.   Quorum  first  present. 

May  29.   Randolph   resolutions — Virginia  plan  proposed. 

May  29.   Charles  Pinckney  submitted  draft. 

May  30-June  13.  Convention,  in  committee  of  the  whole, 
considered  Virginia  plan  and  reported  favor- 
ably. 

June  15.  Paterson  or  New  Jersey  plan  proposed. 

June  18.  Hamilton's  plan  proposed. 

June  19.  Paterson  plan  rejected  and  Virginia  plan  ad- 
hered to. 

July  5.  Committee  reports  "  Connecticut  Compromise." 
Yates  and  Lansing  left. 

July  16.   Amended  report  accepted. 

July  24.   Committee  of  detail  appointed. 

Aug.  6.  Committee  reported  draft  of  Constitution  in 
23   articles. 

Sept.  12.  Committee  of  revision  of  style  appointed. 

Sept.  17.  Adjourned. 


"The  Fathers."     Inception  through 
Compromise 

IN  every  generation  of  our  national  life  there  have 
been  men  who  typified  the  thought  and  feeling 
of  the  time.  Some  of  them  have  been  creators  of 
tlie  ideas  associated  with  their  names;  others  have 
been  merely  the  embodiment  of  general  doctrines 
which  seemed  to  be  floating  in  the  air,  while  still 
others  have  given  expression  to  the  reactionary  ten- 
dencies of  their  day;  but  in  all  of  them  and  through 
all  of  them  we  may  trace  the  progress  of  the  Con- 
stitution. They  typify  the  views  of  successive  gene- 
rations upon  the  great  constitutional  questions,  and 
by  their  lives  we  can  measure  the  stages  of  advance, 
now  slow,  now  fast,  as  the  forces  at  play  are  halting 
or  quick ;  as  peace  or  war,  economic  welfare  or  crisis, 
social  rest  or  unrest,  holds  the  reins  of  the  car  of 
progress. 

The  story  of  the  Constitution  and  its  growth  has 
been  told  in  many  fashions  and  in  many  forms;  but 
the  tale  that  is  told  has  no  ending,  for  the  growth 
of  the  Constitution  is  co-extensive  with  the  growth 
of  the  national  life.     Beginning  even  as  the  nation 

3 


4  Story  of  the  Constitution 

began,  weak  and  diffident,  uncertain  of  its  strength 
and  powers,  the  Constitution  has  grown  with  the 
nation's  growth  and  strengthened  with  its  strength. 

The  Constitution  is  not  solely  the  written  instru- 
ment which  is  contained  within  the  compass  of  the 
few  brief  pages  which  the  "  Fathers  ' '  elaborated  in 
their  days  and  weeks  of  discussion  in  the  convention 
hall  at  Philadelphia  in  1787;  that  document  was  but 
the  skeleton  of  the  colossal  constitutional  figure  of 
to-day.  The  story  of  how  the  skeleton  was  clothed 
with  the  living  tissue  of  constitutional  practice  is 
one  of  absorbing  interest.  Constitutions  do  not 
grow  of  their  own  accord;  they  are  not  organisms  in 
which  life  finds  lodgment.  Tliey  are  dead  forms  till 
human  action  transforms  them  in  accordance  with 
the  will  of  those  who  put  them  into  execution.  So 
the  Constitution  of  the  United  States,  as  it  came 
from  the  hands  of  the  "  Fathers,"  was  dead  parch- 
ment until  men  transmuted  the  written  word  by  the 
alchemy  of  human  action. 

That  the  Constitution  is  the  result  of  compromise 
is  familiar  to  all,  but  there  is  no  better  way  of 
bringing  to  our  minds  a  vivid  realization  of  the 
great  achievements  of  the  "  Fathers "  than  by  re- 
viewing the  conflicting  opinions  and  tendencies  of 
the  time,  particularly  as  they  found  concrete  expres- 
sion in  the  men  of  the  Convention  and  the  questions 
which  confronted  them. 

The  ten  years  immediately  preceding  the  outbreak 
of  the  Revolution  were  filled  with  scarcely  less 
heated  conflict  than  the  years  of  actual  war,  but  the 
conflict  was  waged  in  a  different  spirit.  Argument 
and  discussion  were  the  forerunners  of  battles  and 


'♦The  Fathers"  5 

sieges;  questions  of  government  were  fought  out  first 
in  the  law  courts  and  the  public  prints.  James  Otis, 
Samuel  and  John  Adams  in  Massachusetts;  Dickin- 
son in  Pennsylvania;  Dulaney  in  Maryland;  and 
Patrick  Henry  in  Virginia  were  only  the  leaders  in 
whose  train  there  followed  a  host  of  able  and 
learned  disputants  who  discussed  with  unrivalled 
skill  the  rights  of  the  colonists  and  their  relations 
to  the  mother  country.^  Political  discussion  was 
not,  however,  limited  to  the  question  of  the  relation 
of  the  King  and  Parliament  to  the  colonies.-  The 
colonists  felt  that  their  liberty  was  at  stake,  and  not 
only  from  the  law  of  England  but  also  from  the 
nature  of  man  and  of  government  they  sought  to 
establish  their  right  to  life,  liberty,  and  the  pursuit 
of  happiness.  The  great  degree  of  self-government 
that  had  been  enjoyed  in  all  the  colonies,  and  the 
character  of  the  social  and  political  relations  that 
had  perforce  been  developed  in  the  settling  of  a  new 
country,  had  united  to  give  a  democratic  complexion 
to  their  lives  and  thoughts  of  which  they  themselves 
had  been  little  aware.  Samuel  Adams,  Patrick 
Henry,  and,  a  little  later,  Thomas  Paine  stood  forth 
as  the  champions  of  this  new  spirit  of  democracy. 

The  period  of  discussion  had  enabled  men  to  un- 
derstand more  clearly  the  great  questions  of  govern- 
ment and  liberty.  The  typical  eighteenth-century 
view  of  the  state  of  nature  as  man's  primitive  con- 
dition, of  the  origin  of  society  and  of  government  in 
contract   and  the   consent  of  the  governed,   of   the 

1  Cf.  M.  C.  Tyler,  The  Literary  History  of  the  American  Revo- 
lution. 

2  Cf.  C.  E.  Merriam,  American  Political  Theories,  p.  41  if. 


6  Story  of  the  Constitution 

limitation  of  the  powers  of  government  by  the  ob- 
jects for  which  it  was  established,  formed  the  essen- 
tial elements  of  their  theory  of  government.  It  was 
in  the  main  the  theory  of  Locke  that  the  colonists 
followed;  they  were  little  influenced  by  French  ideas 
save  in  the  single  case  of  Montesquieu.  A  new  phase 
of  their  rights  was,  however,  developed  by  the  colo- 
nists themselves;  they  claimed  not  only  the  rights 
of  Englishmen,  as  derived  from  the  law  of  nature 
and  the  great  charters  of  liberty,  but  also  the  rights 
that  belonged  to  them  as  men — those  inherent  and 
inalienable  rights  of  man  which  they  incorporated 
in  the  Declaration  of  Independence  and  the  Bills  of 
Rights.1 

The  years  of  the  war  added  nothing  to  the  ideas 
already  developed;  men  could  not  fight  and  theorize 
too;  their  energies  were  consumed  in  the  trials  and 
sacrifices  of  the  Revolution;  it  was  a  time  when  the 
written  word  was  less  potent  than  bayonets  and  the 
orator  than  bullets.  Yet  these  same  years  gave  a 
practical  experience  in  constitution  making  and  state 
building  such  as  no  other  people  had  ever  enjoyed. 
Every  State  hastened  to  establish  a  constitution  in 
which  the  effort  was  made  to  guarantee  the  rights 
so  hotly  advocated,  and  the  Union  that  was  no 
stronger  than  "  a  rope  of  sand "  owed  its  fatal 
weakness  to  the  zealous  ardor  in  behalf  of  these 
same  rights.  The  Articles  of  Confederation  came 
into  existence  in  the  course  of  a  struggle  against 
what  the  colonists  regarded  as  unlawful  oppression 

1  Cf.  Merriam,  op.  cit.,  p.  48.  Georg  Jellinek,  The  Declara- 
tion of  the  Rights  of  Man  and  of  Citizens,  p.  78  ff.  Translated 
by  Max  Farrand. 


"The  Fathers"  7 

on  tlie  part  of  a  superior  power.  Union  was  sought 
to  throw  off  this  yoke  of  oppression,  and  the  memory 
of  King  and  Parliament  was  still  too  vivid  for  them 
to  run  the  risk  of  losing  any  of  their  hard-won 
liberty  and  freedom  by  establishing  a  strong  central 
authority.  Time  had  not  yet  forced  upon  them  the 
unwilling  conclusion  that  strength  in  government 
was  necessary  to  liberty,  and  a  strong  union  to  in- 
dependence; that,  in  the  words  of  Washington, 
"  influence  is  not  government."  ^ 

The  years  immediately  following  the  conclusion  of 
peace  are  rightly  called  the  "  Critical  Period  of 
American  History."  With  the  successful  termina- 
tion of  the  Revolution,  the  spirit  of  patriotism 
flagged;  the  zeal  that  had  animated  the  earlier  part 
of  the  struggle  gave  place  to  a  spirit  of  indifference 
to  national  welfare.  Particularism  and  State  pride 
waxed  strong.  The  Congress  of  the  Confederation 
might  command  requisitions  to  its  heart's  content, 
but  not  a  penny  could  it  compel  any  State  to  pay 
into  the  treasury ;  the  powers  conferred  upon  it  were 
large,  but  the  means  for  their  enforcement  were  ut- 
terly inadequate.  The  pressure  of  a  foreign  foe  once 
removed,  the  centrifugal  forces  of  disunion  were  let 
loose.  The  Confederation  was  regarded  as  having 
served  its  purpose.  By  it  the  States  had  attained 
their  independence,  but  independence  once  secured, 
there  was  no  longer  any  reason  why  their  freedom 
should  be  lessened  by  demands  made  upon  them  from 
a  source  so  little  connected  with  their  every-day  lives, 
and   the   failure   of  every   State   to   live   up   to   the 

1  F.  S.  Oliver,  Alexander  Hamilton:  An  Essay  on  American 
Union,  p.  100. 


8  Story  of  the  Constitution 

obligations  imposed  upon  it  by  Congress  became 
notorious.^ 

Such  a  course  on  the  part  of  the  States  soon 
brought  the  representatives  of  the  enfeebled  central 
government  into  disrepute  at  home  and  abroad. 
Foreign  nations  looked  for  the  speedy  dissolution  of 
so  unstable  a  union,  and  were  unwilling  to  engage 
themselves  with  a  government  which  gave  such  slight 
assurance  of  permanency,  while  at  home  men  talked 
of  withdrawal  and  the  establishment  of  separate  con- 
federacies. A  pressing  source  of  weakness  in  the 
Confederation  sprang  from  the  lack  of  power  on  the 
part  of  Congress  to  regulate  commerce  either  between 
the  States  or  with  foreign  nations;  in  the  absence  of 
this  power,  the  natural  jealousies  and  animosities  of 
the  individual  States  soon  found  expression  in  vexa- 
tious restrictions  and  deterrent  imposts. 

The  need  of  mutual  understandings  and  common 
regulations  was  early  apparent  to  men  like  Wash- 
ington and  Madison  in  Virginia,  and  Hamilton  in 
New  York.  First  Maryland  and  Virginia,  then  the 
five  States  represented  at  the  Annapolis  Convention, 
deliberated  upon  the  perplexing  and  ruinous  condi- 
tions of  commercial  relations  but  in  vain,  for  these 
were  conditions  that  could  be  settled  only  by  com- 
mon action  since  they  involved  common  interests. 
The  prospect  was  gloomy  indeed.  The  craze  of  paper 
money  had  swept  over  the  States  and  credit  had  been 
ruined ;  Shays's  rebellion  was  in  full  swing  and  Con- 
gress seemed  powerless  to  crush  it.  The  dispute 
with  Spain  over  the  free  navigation  of  the  Missis- 

1  Cf.  John  Fiske,  The  Critical  Period  of  American  History, 
p.  90  if. 


"  The  Fathers  "  9 

sippi  had  become  critical ;  the  Southern  States  threat- 
ened secession  and  a  return  to  British  allegiance  if 
the  Mississippi  were  given  up,  while  the  Northern 
States  were  of  a  mind  to  secede  if  the  river  were  not 
closed  for  twenty-five  years  in  return  for  a  com- 
mercial treaty  with  Spain. ^  In  the  face  of  these 
difficulties  and  the  impotence  of  Congress  to  cope 
with  them,  the  need  of  action  far  beyond  the  powers 
of  the  commissioners  gathered  at  Annapolis  was 
clearly  evident.  Hamilton  drafted  an  address  which 
set  forth  the  need  of  a  general  convention  of  all  the 
States  to  consider  other  than  commercial  questions, 
and  which  recommended  to  the  States  that  they  should 
appoint  delegates  to  a  convention  to  be  held  in  Phila- 
delphia on  the  second  Monday  of  the  following  May, 
"  to  take  into  consideration  the  situation  of  the 
United  States,"  and  "  to  devise  such  further  pro- 
visions as  shall  appear  to  them  necessary  to  render 
the  Constitution  of  the  Federal  Government  adequate 
to  the  exigencies  of  the  Union."  ^  The  new  conven- 
tion was  not  merely  to  regulate  commerce  but  was 
to  undertake  a  revision  of  the  whole  government  of 
the  Union.  The  Congress  of  the  Confederation  could 
not  disregard  the  call  of  the  Annapolis  Convention. 
A  failure  to  sanction  it  would  only  forfeit  public 
confidence  still  further,  while  the  alarm  of  Shays's 
rebellion  and  the  desperate  condition  of  the  Con- 
federation   were    urgent    factors    in    inducing    the 

1  Cf.  Fiske,  op.  cit.,  pp.  208-211 ;  A.  C.  McLaughlin,  The  Con- 
federation and  the  Constitution,  pp.  91-100;  Oliver,  op.  cit.,  p. 
140. 

2  Documentary  History  of  the  Constitution  of  the  United 
States  of  America,  i.,  5. 


lo  Story  of  the  Constitution 

Congress  to  issue  a  call  for  a  convention  to  meet 
at  the  same  time  and  place  "  for  the  sole  and  express 
purpose  of  revising  the  Articles  of  Confederation."  ^ 

The  impression  rapidly  gained  ground  that  this 
was  the  last  chance  for  a  permanent  union.  Should 
the  Convention  fail  to  achieve  its  purpose,  those 
bonds  of  union,  established  however  insecurely  since 
Bunker  Hill  and  the  Declaration  of  Independence, 
seemed  destined  to  be  dissolved.  With  the  dissolu- 
tion of  the  Union  in  prospect,  the  States  chose  men 
of  the  highest  character  and  achievements  to  repre- 
sent them,  and  it  is  not  an  idle  boast  to  proclaim 
this  assembly  one  of  the  most  distinguished  bodies 
that  has  ever  met  for  political  purposes.  A  review 
of  the  names  of  the  members  shows  that  scarce  a  State 
was  without  its  representative  of  national  fame,  and 
for  the  most  part  they  were  the  men  of  the  revolution- 
ary epoch,  gathered  together  to  reap  the  final  fruits  of 
that  memorable  contest. 

Massachusetts  found  fit  representatives  of  her  vir- 
tues and  her  learning  in  Rufus  King,  a  lawyer  who 
might  "  with  propriety  be  ranked  among  the  Lumi- 
naries "  of  that  age  ^ ;  in  Elbridge  Gerry,  the  success- 
ful merchant  who  cherished  "  as  his  first  virtue,  a 
love  for  his  Country."  Roger  Sherman,  man  of  the 
people,  shoemaker,  almanac-maker,  and  judge,  whose 
heart  was  as  good  as  his  head,  and  Oliver  Ellsworth, 
Chief  Justice  of  the  Supreme  Court  of  the  State,  have 
made   the   part   of   Connecticut   in    the   Convention 

^Doc.  Hist.,  i.,  8. 

2  The  American  Historical  Review,  iii.,  310-334,  contains  the 
notes  of  William  Pierce,  a  member  of  the  Convention  from 
Georgia.  The  quotations  and  most  of  the  characterizations  of 
members  are  taken  from  them. 


"  The  Fathers  "  ii 

justly  famous,  while  Hamilton  from  New  York  was 
recognized  as  the  most  brilliant  man  of  the  Conven- 
tion and  of  the  country.  William  Paterson  of  New 
Jersey,  "  a  Classic,  a  Lawyer,  and  an  Orator,"  was 
tlie  kind  of  man  "  whose  powers  break  in  upon  yon, 
and  create  wonder  and  astonishment";  he  is  best 
known  as  the  proposer  of  the  "  New  Jersey  plan  " 
and  the  defender  of  the  eciuality  of  the  States. 
Pennsylvania  sent  more  delegates  than  any  other 
State  and  among  them  were  not  less  than  four  men 
of  lasting  fame.  P»enjamin  Franklin,  diplomat,  man- 
of-letters,  scientist,  whom  "  the  very  heavens  obey," 
was,  next  to  Washington,  America's  most  conspicuous 
figure;  the  Morrises,  Robert,  the  financier  of  the 
Revolution,  and  Gouverneur,  the  master  of  style,  to 
whom  we  owe  the  literary  finish  of  the  Constitution, 
were  little  less  conspicuous.  For  the  fourth,  James 
Wilson,  the  rugged  Scot,  wlio  drew  attention  "  not 
by  the  charm  of  his  eloquence,  but  by  the  force  of 
his  reasoning,"  ranked  "  among  the  foremost  in  legal 
and  political  knowledge."  Little  Delaware  sent 
John  Dickinson,  "  famed  through  all  America,  for 
his  Farmer's  Letters";  while  Maryland's  Attorney 
General,  Luther  Martin,  was  the  Convention's  most 
persistent  and  prolix  supporter  of  the  rights  of  the 
small  States. 

Virginia  could  rival  Pennsylvania  in  the  number 
of  her  famous  delegates.  Washington,  whose  presence 
in  the  Convention  was  the  unqualified  prerequisite 
of  its  success,  w^as  unanimously  chosen  presiding 
officer;  George  Wythe,  "confessedly  one  of  the  most 
learned  legal  characters  of  the  present  age";  Mason, 
able,  experienced,  convincing,  and  "  undoubtedly  one 


12  Story  of  the  Constitution 

of  the  best  politicians  in  America " ;  Randolph, 
young,  handsome,  and  talented;  and  finally  Madison, 
small  and  unprepossessing,  with  no  pretence  of  ora- 
tory, but  "  the  affairs  of  the  United  States,  he 
perhaps,  has  the  most  correct  knowledge  of,  of  any 
man  in  the  Union  " ;  "  he  blends  together  the  pro- 
found politician  with  the  scholar  " ;  thoughtful  and 
earnest,  his  labors  in  the  Convention  in  behalf  of  the 
Constitution  surpass  those  of  any  one  man.  South. 
Carolina  was  the  only  one  of  the  remaining  States 
whose  representatives  have  achieved  a  lasting  place 
in  our  history;  John  Rutledge  and  the  two  Pinckneys 
may  well  close  the  roster  of  the  famous  names  of  the 
Convention. 

Some  distinguished  names,  however,  are  missing, 
and  we  wonder  what  might  have  been  the  result  had 
Jefferson,  instead  of  courting  Republican  France  by 
his  republican  sympathies,  been  present  to  champion 
the  cause  of  the  States  against  the  nation;  or  Patrick 
Henry,  with  his  fiery  eloquence  in  favor  of  State 
sovereignty.  What  influence  might  not  the  aristo- 
cratic John  Adams,  with  his  leanings  toward  mon- 
archy and  his  distrust  of  the  people,  have  exerted,  had 
he  been  in  the  Convention  perchance  to  second  and 
support  tlie  strongly  centralized  plan  of  Hamilton? 

The  success  of  the  Revolution  had  placed  beyond 
the  possibility  of  cavil  the  right  to  life,  liberty,  and 
the  pursuit  of  happiness.  The  question  now  at  issue 
was  under  what  form  of  government  these  rights 
could  be  best  secured;  it  was  yet  to  be  determined 
how  the  advantages  to  be  derived  from  a  union  of 
all  the  States  could  be  combined  with  the  security 
of  life  and  property  enjoyed  under  the  government  of 


"The  Fathers"  13 

each.  The  first  (luestion  which  confronted  the  mem- 
bers of  the  Convention  when  once  assembled  was  that 
raised  by  the  resolution  of  Congress  under  which 
they  had  gathered.  Should  they  adhere  to  tlie  limi- 
tation set  by  that  resolution  and  restrict  themselves 
to  an  amendment  of  the  Articles  of  Confederation, 
or  should  they  strike  out  boldly  and  do  what  seemed 
to  them  best  for  the  general  welfare?  Should  they 
disregard  the  Congress  and  its  resolution  and,  act- 
ing as  the  representatives  of  the  people,  produce  an 
instrument  of  government  suited  to  the  country's 
needs?  The  question  was  crucial,  was  revolutionary, 
but  they  were  undaunted;  believing  that  no  amend- 
ment of  the  Articles  of  Confederation  would  suffice, 
they  adopted  a  resolution  declaring  "  that  a  national 
government  ought  to  be  established  consisting  of  a 
supreme  Legislative,  Judiciary,  and  Executive."  ^ 
In  the  discussion  of  this  resolution  the  difference  be- 
tween a  federal  and  a  national  government  was 
clearly  stated  by  Gouverneur  Morris,  who  declared 
that  the  former  was  "  a  mere  compact  resting  on  the 
good  faith  of  the  parties  " ;  the  latter  had  "  a  com- 
plete and  compulsive  operation."  ^ 

At  a  later  stage  of  the  proceedings  when  the 
authority  of  the  Convention  to  take  this  radical  ac- 
tion had  again  been  raised,  Randolph  asserted  baldly 
that  "  when  the  salvation  of  the  Republic  was  at 
stake,  it  would  be  treason  to  our  trust,  not  to  pro- 
pose what  we  found  necessary."  ^    To  this  Hamilton 

1  Doc.  Hist.,  iii.,  162. 

-  Ibid.,  iii.,  22.     Notice  the  difference  in  meaning  in  the  word 
"  federal  "  between  then  and  now, 
^  Ibid.,  iii.,  136. 


14  Story  of  the  Constitution 

agreed.  "  The  States/*  be  said,  "  sent  us  here  to 
provide  for  the  exigencies  of  the  Union.  To  rely  on 
any  plan  not  adequate  to  these  exigencies,  merely 
because  it  was  not  clearly  within  our  powers,  would 
be  to  sacrifice  the  means  to  the  end."  ^ 

To  Justify  the  revolutionary  character  of  this  ac- 
tion there  was  inserted  in  the  Constitution  the  clause 
j)roviding  that  "  the  ratification  of  the  conventions 
of  nine  States  shall  be  sufficient  for  the  establishment 
of  this  Constitution  between  the  States  so  ratifying 
the  same,"  ^  and  furthermore  the  ratification  was  to 
be  by  conventions  in  each  State,  especially  elected 
for  the  purpose,  and  not  by  the  State  legislatures. 
The  Constitution  should  rest  upon  the  people,  not 
upon  the  States. 

The  decision  that  a  national  government  ought  to 
be  established,  consisting  of  a  supreme  legislative, 
executive,  and  judiciary,  did  not,  however,  settle  the 
question  as  to  the  nature  of  the  new  Union.  From 
the  outset  there  were  two  well-defined  and  conflicting 
opinions  on  the  subject.  The  small  States  clung  tena- 
ciously to  the  principle  of  the  Articles  of  Confedera- 
tion by  which  each  State  had  an  equal  voice  with 
every  other  State;  the  large  States  were  equally  de- 
termined to  put  an  end  to  a  condition  of  affairs  in 
which  their  wealth,  size,  and  importance  told  for 
nothing.  From  this  struggle  of  the  small  and  the 
large  States  there  resulted  the  first  of  the  great  com- 
promises of  the  Constitution."    The  contest  centred 

1  Doc.  Hist.,  iii.,  139. 
-  Constitution,  Art.  VII. 

'  For  a  detailed  account  of  the  compromises,  cf.  Fiske  op.  cit., 
pp.   250-267;    McLaughlin,  op.   cit.,   pp.   221   ff ;   Max   Farrand, 


''The  Fathers"  15 

around  the  "Virginia"  and  the  "New  Jersey  "  plans.^ 
The  former,  ehiborated  by  the  delegates  from  that 
State  and  presented  by  Randolph,  provided  for  a 
union  in  which  the  equality  of  tlie  States  as  sovereign 
political  bodies  should  give  way  to  an  inequality 
based  upon  wealth  and  population,  in  which  powers 
as  well  as  rights  should  be  conferred  upon  the  cen- 
tral authority;  the  latter,  proposed  by  Paterson  of 
New  Jersey,  sought  to  maintain  the  authority  of  the 
States  as  it  had  existed  under  the  Articles  of 
Confederation.  Large  powers,  to  be  sure,  were  to 
be  lodged  in  the  new  government,  but  the  funda- 
mental weakness  would  still  remain ;  the  government 
would  still  lack  the  power  of  acting  directly  upon 
individuals  and  could  proceed  only  against  the  States. 
Any  attempt,  as  Madison  had  showed,  to  coerce  a 
State,  "  would  look  more  like  a  declaration  of  war, 
than  an  infliction  of  punishment."  -  The  issue  was 
squarely  presented.  Lansing  of  New  York  declared 
that  the  plan  of  Mr.  Paterson  "  sustains  the  sov- 
ereignty of  the  respective  States,  that  of  Mr.  Ran- 
dolph destroys  it."  ^  Paterson  himself  asserted  that 
the  Convention  had  "  no  power  to  vary  the  idea  of 
equal  sovereignty,"  ^  and  that  he  "  had  rather  sub- 
mit to  a  monarch,  to  a  despot,  than  to  such  a  fate."  ^ 
Wilson,  on  the  other  hand,  contrasted  the  two  plans 

The  Compromises  of  the  Constitution,  in  the  American  His- 
torical Review,  April,  1904;.  and  Alexander  Johnston,  American 
Political  History,  ii.,  101  ff. 

1  Doc.  Hist,  iii.,  17-20  and  125-128. 

2  Gaillard  Hunt,  The  Writings  of  Madison,  iii.,  56. 
^Doc.  Hist.,  iii.,  128-129. 

*Ibid.,  iii.,  131. 
^Ibid.,  iii.,   99. 


i6  Story  of  the  Constitution 

point  by  point  and  always  in  favor  of  the  Virginia 
plan,^  and  Raudolpb  saw  that  "  the  true  question  is 
whether  we  shall  adhere  to  the  federal  plan,  or  in- 
troduce the  national  plan,"  which  would  be  a  resort 
"  to  a  national  leg islaf Ton  over  individuals/'  -  Ham- 
ilton took  advantage  of  the  opportunity  to  express 
his  disapproval  of  both  plans  and  to  "  point  out  such 
changes  as  might  render  a  national  owefefficacious,"  ^ 
and  Madison  argued  at  length  against  the  evils  of 
the  New  Jersey  plan.^ 

The  smaller  the  State,  the  more  violent,  apparently, 
was  the  opposition  to  a  national  government  and  a 
loss  of  equality.  Luther  Martin  of  Maryland  pro- 
tested that  he  "  would  rather  confederate  with  any 
single  State,  than  submit  to  the  Virginia  plan,"  ^  and 
Bedford  of  Delaware  did  not  hesitate  to  go  to  the 
extreme  of  proclaiming  that  the  small  States,  rather 
than  submit  to  the  compulsion  of  the  large  States, 
would  "  find  some  foreign  ally  of  more  honor  and 
good  faith,"  who  would  "  take  them  by  the  hand  and 
do  them  justice."  ^ 

The  compromise  by  which  such  widely  divergent 
views  were  reconciled  is  generally  known  as  the 
"  Connecticut  comj^romise."  Connecticut  had  from 
its  earTiest  history  made  use  of  the  dual  system  of 
representation  in  its  legislature,  one  house  represent- 
ing  the  towns   as  equal   units,   and   the   other   the 

1  Doc.  Hist,  iii.,  132  ff. 
^Ibid.,  iii.,  137. 
3  Ibid.,  iii.,  138  ff. 
*Ihid.,  iii.,  151  ff. 

^  Yates,  Secret  Proceedings  and  Debates  of  the  Federal  Con- 
vention, p.  194. 

«  Doc.  Hist.,  iii.,  261. 


"The  Fathers"  17 

people,^  and  when  the  debate  arose  in  the  Convention 
early  in  June,  on  the  principle  of  representation  to 
be  followed  in  the  two  houses,  Sherman  of  Connecti- 
cut proposed  that  "  the  proportion  of  suffrage  in 
the  first  branch  should  be  according  to  the  respective 
numbers  of  free  inhabitants;  and  that  in  the  second 
branch,  or  Senate,  each  State  should  have  one  vote 
and  no  more."  -  More  than  two  weeks  later,  after 
the  New  Jersey  plan  had  been  rejected  and  the  next 
day  after  the  discussion  had  grown  so  violent  that 
Franklin  had  proposed  that  henceforth  the  Conven- 
tion should  open  with  prayer.  Dr.  Johnson,  another 
of  Connecticut's  representatives,  expressed  the  opin- 
ion that  "  as  in  some  respects  the  States  are  to  be 
considered  in  their  political  capacity,  and  in  others 
as  districts  of  individual  citizens,  the  two  ideas  em- 
braced on  different  sides,  instead  of  being  opposed 
to  each  other,  ought  to  be  combined;  that  in  one 
branch  the  people  ought  to  be  represented;  in  the 
other,  the  States.^'  ^  On  the  same  day,  Oliver  Ells- 
worth gave  expression  to  similar  views.  "  We  were 
partly  national;  partly  federal.  The  proportional 
representation  in  the  first  branch  was  conformable 
to  the  national  principle  and  would  secure  the  large 
States  against  the  small.  An  equality  of  voices  was 
conformable  to  the  federal  principle  and  was  neces- 
sary to  secure  the  small  States  against  the  large."  "* 

1  Farrand,  Compromises  of  the  Constitution  in  Am.  Hist.  Rev.. 
note  1,  p.  480,  rejects  this  explanation  of  the  origin  of  the 
designation  of  the  compromise. 

2  Doc.  Hist.,  iii.,  101. 

3  76id.,  iii.,  237. 
4/6id.,  iii.,  245-246w 


i8  Story  of  the  Constitution 

On  this  middle  ground  he  trusted  a  compromise 
would  take  place.  Whether  or  not  Connecticut's  ex- 
ample and  representatives  are  responsible  for  the 
compromise,  at  least  their  proposals  contained  the 
principle  upon  which  agreement  was  finally  reached. 
Proportional  representation  in  the  lower  house  met 
in  part  the  demand  of  the  large  States  for  adequate 
recognition  of  their  size;  equality  of  representation 
in  the  Senate  soothed  the  wounded  pride  of  State 
sovereignty  and  gave  to  the  small  States  reasonable 
ground  of  security.  Such  in  substance  was  the  re- 
port of  the  Committee  that  had  been  appointed  when 
the  Convention  reached  a  deadlock  on  this  question ; 
such  to-day  is  the  principle  of  representation  in  the 
two  houses  of  our  national  legislature. 

The  first  great  conflict  of  the  Convention  then  was 
a  struggle  between  the  large  States  and  the  small, 
between  a  growing  spirit  of  nationalism  and  a  tena- 
cious desire  for  local  independence,  and  after  long 
and  bitter  contests  victory  rested  entirely  with  neither 
party,  but  had  been  won  by  those  men  in  the  Con- 
vention who  desired  a  strong  central  government 
resting  upon  a  different  foundation  from  the  Articles 
of  Confederation,  but  who  were  nevertheless  unwill- 
ing to  leave  the  small  States  without  effectual  means 
for  the  protection  of  the  rights  to  be  enjoyed  under 
the  new  form  of  union. 

The  very  terms  of  the  compromise  by  which  a 
disruption  of  the  Convention  had  been  prevented 
carried  with  them  the  seeds  of  further  controversy. 
Equal  representation  in  the  Senate  seemed  a  suffi- 
cient guarantee  of  the  rights  of  the  small  States, 
but  their  sense  of  security  was  measurably  lessened 


"  The  Fathers  "  19 

when  the  Convention  agreed  that  the  members  of  the 
Senate  shoukl  vote  per  capita  and  not  by  States. 
The  question,  moreover,  of  the  proportion  of  repre- 
sentation in  the  lower  house  presented  difficulties 
scarcely  less  acute  than  the  fundamental  problems 
which  had  already  been  settled. 

The  necessity  of  expansion  toward  the  West  Tvas 
evident,  and  the  probability  of  the  formation  of  new 
States  caused  no  little  anxiety  to  some  members  of 
the  Convention.  Gouverneur  Morris  desired  the  At- 
lantic States  to  "  keep  a  majority  of  votes  in  their 
own  hands  "  ^  in  order  that  they  might  not  be  con- 
trolled by  the  West.  "  If  the  Western  people  get 
the  power  into  their  hands  they  will  ruin  the  At- 
lantic interests.  The  back  members  are  always  the 
most  averse  to  the  best  measures."  ^  Gerry  and  King 
proposed  "  to  secure  the  liberties  of  the  States  already 
confederated "  by  prohibiting  the  number  of  repre- 
sentatives in  the  lower  house  from  the  new  States 
ever  exceeding  that  of  the  old  States.^  Mason  and 
Madison,  however,  represented  the  better  attitude  in 
their  vigorous  defence  of  the  right  of  the  future 
States  to  be  admitted  to  the  Union  on  terms  of 
equality  with  the  older  States,^  and  in  this  the  Con- 
vention supported  them.  Wilson  spoke  after  the 
manner  of  the  true  democrat  when  he  declared  that 
''  the  majority  of  people  wherever  found  ought  in  all 
questions  to  govern  the  minority."  ^ 

'^Doc.  Hist,  iii.,  305. 
2  Ibid.,  iii.,  312. 
^Ibid.,  iii.,  332. 
*Ibid.,  iii.,  307  and  314. 
^Ibid.,  iii.,  330. 


20  Story  of  the  Constitution 

Wbile  the  origin  of  the  first  fundamental  difference 
of  opinion  among  tlie  members  of  the  Convention 
grew  out  of  political  considerations,  the  second 
ground  of  divergence  was  social  in  its  nature.  In 
the  discussion  of  the  question  of  representation  in 
the  two  houses,  Madison  had  already  expressed  it  as 
his  opinion  that  the  antithesis  of  the  States  was  due 
not  to  their  difference  of  size,  but  to  climate  and  to 
their  having  or  not  having  slaves.^  Charles  Pinck- 
ney,  too,  had  based  the  real  distinction  between  the 
States  upon  the  divergent  economic  interests  of 
North  and  South. ^  A  sharp  line  of  distinction  be- 
gan to  be  drawn  between  these  two  sections,  the  in- 
terests of  which  Butler  declared  "  to  be  as  different 
as  the  interests  of  Kussia  and  Turkey."  ^ 

In  determining  the  number  in  accordance  with 
which  representation  in  the  lower  house  should  be 
apportioned,  the  question  at  once  arose  whether  the 
slaves  should  be  counted  as  a  part  of  the  population. 
The  fundamental  notion  of  the  end  and  aim  of  all 
government  was  the  preservation  of  property;  the 
wealth,  therefore,  of  the  respective  States  should  be 
taken  into  account  in  any  scheme  of  representation. 
In  the  Soutli  the  problem  was  complicated  by  the 
existence  of  a  peculiar  kind  of  wealth,  for  slaves 
were  both  property  and  human  beings.  Butler  and 
General  C.  C.  Pinckney  insisted  that  the  blacks  should 
be  included  equally  with  the  whites  in  the  rule  of 
representation,  and  not  at  a  three-fifths  ratio  as  pro- 
posed.     "  An   equal   representation   ought  to   be  al- 

1  Doc.  Hist.,  iii.,  254. 
-Ibid.,  iii.,  263. 
3/6id.,  iii.,  639. 


"The  Fathers  "  21 

lowed  for  tliem,"  said  Butler,  "  in  a  government 
which  was  instituted  principally  for  the  protection  of 
property,  and  was  itself  to  be  supported  by  prop- 
erty." ^  Wilson,  on  the  other  hand,  could  see  no 
reason  why  the  blacks  should  be  admitted  at  a  three- 
fifths  ratio.  "  Are  thej^  admitted  as  citizens?  Then 
why  are  they  not  admitted  on  an  equality  with  white 
citizens?  Are  they  admitted  as  property?  Then  why 
is  not  other  property  admitted  into  the  computation? 
These  were  difficulties  however  which  he  thought 
must  be  overruled  by  the  necessity  of  compromise."  ^ 
The  terms  of  the  compromise  resulted  from  a  sug- 
gestion of  Gouverneur  Morris  who  "  moved  to  add 
to  the  clause  empowering  the  Legislature  to  vary 
the  Representation  according  to  the  principle  of 
wealth  and  number  of  inhabitants,  a  proviso  that 
taxation  shall  be  in  proportion  to  Representation."  ^ 
This  was  amended  to  apply  only  to  direct  taxes.* 
Such  a  provision  was  a  two-edged  sword,  but  no 
logical  objection  to  it  could  be  made.  If  the  slaves 
were  to  be  counted  in  determining  representation, 
the  slave-holding  States  must  pay  the  bill  in  direct 
taxes,  and  the  same  would  be  true  of  the  new,  but 
poor,  States  of  the  West.  The  South  was  willing  to 
run  the  risk,  and  it  was  determined  that  "  representa- 
tives and  direct  taxes  shall  be  apportioned  among 
the  several  States  .  .  .  according  to  their  respective 
numbers,  which  shall  be  determined  by  adding  to 
the  whole  number  of  free  persons,  including  those 

1  Doc.  Hist.,  iii.,  309. 
^Ibid.,  iii.,  317. 
3  Ibid.,  iii.,  319. 
*  Ibid.,  iii.,  320. 


2  2  Story  of  the  Constitution 

bound  to  service  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  three-fifths  of  all  other  persons."  ^ 
The  antagonism  of  the  Eastern  and  Southern 
States  was  not  allayed  by  the  compromise  on  repre- 
sentation, but  continued  until  it  was  settled,  so  far 
as  the  work  of  the  Convention  was  concerned,  by  a 
compromise,  the  effects  of  which  are  just  beginning 
fully  to  be  comprehended.  The  Eastern  States  had 
become  convinced  of  the  necessity  of  the  regulation 
of  commerce  by  the  general  government,  and  their 
conviction  was  shared  to  a  limited  degree  by  the 
Middle  States  and  Virginia.  The  passage  of  a  Navi- 
gation Act  by  Congress  appeared  to  them  highly 
desirable.  Georgia  and  South  Carolina  on  the  other 
hand,  by  reason  of  their  rice  and  indigo  culture, 
deemed  it  absolutely  essential  to  their  welfare  that 
the  importation  of  slaves  should  not  be  prohibited. 
C.  C.  Pinckney  accordingly  declared  that  a  vote  to 
abolish  the  slave  trade  would  be  received  by  South 
Carolina  as  "  a  polite  way  of  telling  her  that  she 
was  not  wanted  in  the  Union."  ^  It  was  necessary 
to  retain  the  support  of  these  two  States  if  the  Con- 
stitution was  to  have  the  slightest  hope  of  adoption. 
Fortunately,  the  belief  was  prevalent  that  not  only 
the  importation  of  slaves,  but  slavery  itself,  would 
soon  die  out.  It  had  practically  disappeared  from 
the  Northern  States,  and  Whitney's  invention  had 
not  yet  raised  cotton  to  the  position  of  king,  had  not 
yet  made  it  the  great  "  staple  product  "  which  de- 
manded slavery  as  an  economic  necessity.  Accord- 
ingly Congress  was  given   the   power  "  to  regulate 

1  Constitution,  Art.  I.,  sec.  2. 

2  Fiske,  cp.  cit,  p.  263. 


"The  Fathers"  23 

commerce  with  foreign  nations,  and  among  the  sev- 
eral States,  and  with  the  Indian  tribes,"  ^  but  "  the 
migration  or  importation  of  such  persons  as  any  of 
the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the 
year  one  thousand  eight  hundred  and  eight,  but 
a  tax  or  duty  may  be  imposed  on  such  importation, 
not  exceeding  ten  dollars  for  each  person."  ^ 

Marshall  first  seized  on  the  possibilities  of  the  so- 
called  "  commerce  clause  "  of  the  Constitution,  and 
successive  courts  have  not  been  slow  to  make  it  keep 
pace  with  our  modern  commercial  and  industrial 
evolution.  In  more  recent  times  both  Congress  and 
the  Executive  have  been  seeking  new  worlds  for  the 
Federal  Government  to  conquer;  no  provision  of  the 
Constitution  is  being  more  zealously  scrutinized  than 
this  in  the  search  for  means  to  cope  with  the  great 
industrial  problems  of  the  day.  Upon  the  slender 
thread  of  commerce  "  among  the  several  States," 
judicial  decisions  and  legislative  enactments  have 
suspended  a  weight  of  federal  powers  that  must  have 
snapped  any  less  elastic  provision,  and  the  end  is 
not  yet. 

No  subject  before  the  Convention  drew  forth  more 
differences  of  opinion  than  the  character  of  the 
Executive  ^ ;  whether  it  should  be  single  or  plural, 
what  powers  should  be  conferred  upon  it,  and  how  it 
should  be  chosen   were  all   objects  of  the  liveliest 

1  Constitution,  Art.  I.,  sec.  8. 

2  Const.,  Art.  I.,  sec.  9. 

3  Farrand,  Compromises,  in  Am.  Hist.  Rev.,  p.  485  ff,  treats 
of  the  compromise  respecting  the  Executive  at  some  length  and 
to  him  I  owe  much  that  is  here  said. 


24  Story  of  the  Constitution 

concern  and  the  greatest  diversity  of  opinion.  No 
less  than  thirty  votes  were  taken  concerning  various 
phases  of  the  method  of  election  alone.  The  dif- 
ferences of  opinion  manifested  over  this  question 
divided  the  members  along  new  lines.  We  have  seen 
large  States  and  small  striving  for  supremacy,  we 
have  witnessed  North  and  South  diverge  along  lines 
destined  continually  to  divide  them  till  the  signifi- 
cance of  Mason  and  Dixon's  line  was  wiped  out  by 
blood.  Now,  however,  in  the  character  and  choice 
of  the  Executive  the  more  fundamental  distinction 
between  aristocracy  and  democracy  makes  itself  felt. 
A  direct  election  of  the  Executive  by  the  people 
found  no  favor  in  the  eyes  of  men  whose  faith  in 
the  mass  of  mankind  had  been  so  sorely  tried  by 
the  events  of  recent  years,  whose  inherent  regard 
for  birth  and  breeding  had  been  greatly  strength- 
ened by  the  license  and  excesses  of  the  democratic 
mob,  and  whose  conservative  instincts  and  traditional 
respect  for  rights  of  property  had  been  greatly 
alarmed  by  fiat  money  and  by  Shays's  rebellion. 
Some  indirect  form  of  election  seemed  to  them  neces- 
sary to  preserve  the  whole  government  from  ultimate 
destruction  from  too  much  democracy.  It  was  felt, 
however,  that  an  election  by  the  people  would  give 
an  advantage  to  the  large  States;  even  under  the 
electoral  system  in  which  each  State  was  to  have  a 
number  of  electors  equal  to  the  number  of  its 
Senators  and  Representatives,  the  advantage  would 
still  remain  with  tlie  large  States;  the  terms  of  the 
compromise  only  become"  evident  when  we  know  that 
it  was  supposed  that  in  a  majority  of  cases  no  elec- 
tion would  result  because  of  the  failure  of  any  one 


•'The  Fathers"  25 

candidate  to  secure  a  majority;  in  that  case  it  was 
lirst  proposed  that  the  election  should  fall  to  the 
Senate  in  which  the  States  were  equally  represented. 
Mere  the  advantage  would  be  with  the  small  States. 
Because  of  the  many  objections  that  arose  to  giving 
additional  powers  to  the  Senate,  it  was  finally  de- 
cided to  bestow  this  power  upon  the  House  of  Rep- 
resentatives, but  with  the  provision  that  each  State 
should  have  only  a  single  vote.  Thus  was  the  prin- 
ciple of  the  compromise  retained  and  the  one  con- 
spicuous failure  of  the  Convention's  work  completed. 

The  main  features  of  the  form  of  government 
elaborated  in  the  Convention  are  familiar.  Through- 
out the  whole  structure  ran  the  principle  of  the 
separation  of  the  powers  of  government  and  the  sys- 
tem of  checks  and  balances.  The  principle  was  adopted 
that  all  matters  which  were  of  common  interest 
should  be  entrusted  to  the  Federal  Government,  while 
the  far  larger  field  of  purely  local  interests  should 
be  reserved  by  the  States.  "  The  task,"  said  Madi- 
son, "  was  to  draw  a  line  of  demarcation  which 
would  give  the  General  Government  every  power 
requisite  for  general  purposes,  and  leave  to  the  States 
every  power  which  might  be  most  beneficially  ad- 
ministered by  them." 

The  power  of  the  Federal  Government  has  grown 
steadily;  more  and  more  the  National  Government 
has  been  brought  into  contact  with  the  ordinary  af- 
fairs of  daily  life.  The  principal  means  through 
which  this  growth  of  power  has  taken  place  has 
not  been  the  constitutional  method  of  amendment, 
which,  since  the  infancy  of  the  nation,  has  been  pos- 
sible only  under  the  stress  of  civil  war,  but  has  been 


26  Story  of  the  Constitution 

the  power  of  "  interpretation."  The  faculty  of  in- 
terpreting the  law  has  achieved  a  peculiar  prominence 
in  our  system  through  the  existence  of  a  written 
constitution  which  is  the  supreme  law  of  the  land ; 
it  is  the  duty  of  the  courts  to  test  all  laws  by  tlie 
standard  of  the  Constitution,  and  in  doing  so  they 
must  determine  what,  under  all  the  circumstances, 
the  Constitution  means.  Interpretation  must  in  the 
long  run  reflect  the  life  of  the  people  and  give  ex- 
pression to  their  lasting  convictions  or  law  will  be- 
come the  oppressor  instead  of  the  protector  of  rights; 
back  of  the  legal  formulas  lie  the  forces  of  society 
which  infuse  into  them  the  breath  of  life. 

That  such  has  been  the  case  in  our  own  national 
life  can  scarcely  be  questioned  when  we  reflect  upon 
the  transformations  wrought  by  steam  and  electricity; 
railroads  and  telegraphs  have  often  been  slender 
bonds,  but  without  them  we  may  easily  picture  a 
land  of  many  unions  instead  of  one.  Not  only  has 
a  single  union  of  the  whole  country  been  made  pos- 
sible by  these  material  forces,  but  also  the  life  of 
the  people  has  been  brought  closer  together;  common 
interests  have  multiplied  as  rapidly  as  have  the 
means  of  communication.  It  is,  therefore,  a  natural 
result  of  such  growth  that  we  have  witnessed  a  like 
growth  in  that  part  of  the  Constitution  dealing  with 
the  regulation  of  common  interests.  Interpretation 
is  but  the  synonym  of  growth  and  expansion  under 
conditions  which  have  multiplied  the  common  ele- 
ments of  our  national  life. 


II 


Alexander  Hamilton.    Growth  through 
Administrative  Organization 


27 


ALEXANDER  HAMILTON 

1757.     Jan.  11.    Born  on  the  island  of  Nevis,  West  Indies. 
1769.  Clerk  in  office  of  Nicholas  Cruger.     Wrote  de- 

scription of  a  hurricane. 

1772.  October.    Arrived  in  Boston. 

1773.  Entered  King's  College,  now  Columbia  Univer- 

sity. 
Visited  Boston. 
July     6.    First  public  speech,  made  at  the  "  Meeting  in 
the  Fields." 
1774-5  Wrote    A    Full    Vindication   and    The   Farmer 

Refuted,    which    were    attributed    to    Jay    and 
Livingston;  also  other  pamphlets. 

1776.  Given   command   of   New   York   artillery   com- 

pany. 

1777.  Appointed  staff  officer  and  Military  Secretary 

to  Washington. 

1780.  Letter  to  James  Duane  on  national  bank. 

1781.  Feb.  16.    Break  with  Washington. 

Brevetted  Colonel   at  Yorktown. 

1782.  Delegate  to  Continental  Congress. 
Admitted  to  the  bar. 

1786.  Attended  Annapolis  Convention.     Drew  up  ad- 

dress.    Elected  to  State  Assembly. 

1787.  Delegate  to  Philadelphia  Convention. 
June  29.   Withdrew  temporarily  from  Convention. 
Sept.  17.  Affixed  name  to  Constitution. 

1787-88.  Delegate  to  last  Continental  Congress. 

1787-88.  Federalist  written. 

1788.  Member  of  the  New  York  State  Convention. 

1789.  Sept.  Appointed  first  Secretary  of  the  Treasury. 

1790.  Reports  on  the  Public  Credit. 
Financial  policy  accepted. 

1791.  National  Bank  established, 

1794.  Quelled  Whiskey  Rebellion. 

1795.  Jan.  31.    Resigned  from  Secretaryship. 

1798.  Friendship  with  Adams  broken. 

Made   Inspector-General   with   rank  of   Major- 
General, 

1799.  Promoted  to  Commander-in-Chief. 

1800.  Favored  Jefferson's  election  over  Burr. 

1803.  Charged   with    Burr's   defeat  for   Governor   of 

New  York. 

1804.  July  11.    Duel  with  Burr  at  Weehawken. 
July  12.    Died. 

28 


II 


Alexander  Hamilton.     Growth  Through 
Administrative  Organization 

THE  life  of  Alexander  Hamilton  illustrates  as  does 
no  other  in  American  history  the  truth  that  the 
essence  of  government  lies  in  the  spirit  of  the  gov- 
ernors, that  its  real  character  is  determined  by  that 
of  the  men  who  administer  it,  and  that  its  form 
and  direction  reflect  the  will  and  desire  of  those 
entrusted  with  the  guidance  of  its  destinies.  Auto- 
cratic governments  are  confessedly  the  image  of  the 
autocrat,  and  the  likeness  is  striking  or  faint  in 
proportion  as  his  will  dominates  those  who  serve 
him.  The  same  is  true  of  governments  that  are  con- 
stitutional in  form ;  the  opportunity  for  the  free  play 
of  a  strong  personality  upon  the  most  fundamental 
relations  of  government  still  exists.  Where  there  is 
a  written  and  rigid  constitution,  where  the  form  of 
government  is  carefully  elaborated  and  committed 
with  due  solemnity  to  a  written  document,  and  where 
this  is  done  with  the  settled  determination  to  fix  the 
nature  and  character  of  the  State  to  be  organized,  it 
may  be  thought  that  the  influence  of  the  individual 
will  be  all  but  eliminated,  that  only  within  the  nar- 

29 


30  Story  of  the  Constitution 

row  limits  of  the  written  specifications  can  he  pursue 
his  circumscribed  course,  with  here  and  there  a  slight 
adjustment  of  the  parts  of  the  governmental  ma- 
chine, to  mark  his  share  in  the  work.  Such  at  least 
has  been  the  attitude  taken  towards  our  own  Consti- 
tution by  the  multitudes  who  have  made  of  it  a 
political  fetish,  and  who  have  refused  to  see  that  an 
institution  is  dependent  for  its  character  upon  the 
men  who  give  it  reality  in  the  world  of  events. 

The  framers  of  the  Constitution  were  well  aware 
that  the  true  nature  of  the  government  to  be  insti- 
tuted and  of  the  Union  to  'be  created  by  the  Consti- 
tuition  was  yet  to  be  determined.  The  compromises 
of  the  Convention  had  produced  a  government  "partly 
national  and  partly  federal,"  and  there  were  grave 
fears  that  it  could  not  be  made  to  work  at  all.  No 
man  felt  sure  what  the  result  would  be.  Hamilton, 
however,  foresaw  the  possibilities  of  growth  that 
stretched  out  before  the  national  government.^  Above 
all  others  he  felt  the  need  of  a  strong  central  gov- 
ernment and  more  than  all  others  he  contributed  to 
make  the  new  Union  a  nation.-  Hamilton's  part  in 
fashioning  the  mere  outward  form  of  government 
was  small;  his  great  services  lay  in  the  influence  he 
exerted  upon  its  adoption  through  the  masterly  ex- 
position in  the  papers  of  the  Federalist  and  in  the 
determining  influence  he  exercised  over  the  years  of 
its  infancy,  when,  as  Secretary  of  the  Treasury,  his 
ruling  spirit  dominated  every  branch  of  the  govern- 
ment and  for  the  time  being  set  at  naught  the  care- 

1  Cf.  Works,  ed.  by  H.  C.  Lodge,  i.,  423. 

-Cf.  F.  S.  Oliver,  Alexander  Hamilton,  p.  186-187. 


Alexander  Hamilton  31 

fully  devised  system  of  the  separation  of  the  powers 
of  government.^  His  mastery  of  the  legislative 
branch  of  (he  government  was  little  less  complete 
than  liis  ascendancy  over  Washington,-  and  from 
his  administrative  direction  there  sprang  up  a  tradi- 
tion of  strength  in  the  government  which  all  the 
fervor  of  tlie  Jeffersonian  triumph  could  not  over- 
come. 

Tlie  great  passion  of  Hamilton's  life  w-as  love  of 
an  orderly  direction  in  liuman  affairs;  mankind  in 
the  mass  lie  regarded  as  weak,  and  this  w^eakness 
demanded  tlie  strength  of  government  if  the  human 
race  was  to  enjoy  the  blessings  of  liberty.  A  strong 
government  was  necessary  to  restrain  the  natural 
disorders  of  society,  wliatever  tlie  character  of  its 
organization.  Order  and  strength  were  inseparable 
in  all  his  thought  of  government;  his  practical  ex- 
perience had  demonstrated  tliat  social  disorder  and 
governmental  weakness  were  correlative  terms,"^  and 
the  verdict  of  history  has  confirmed  his  experience. 

Hamilton  was  born  on  the  little  island  of  Nevis, 
in  the  West  Indies,  on  January  11,  1757.^  His 
father  was  James  Hamilton  of  the  Scotch  Hamiltons, 
honest,  but  unsuccessful,  and  his  mother  was  a 
French  Huguenot.  In  his  character  we  find  the  ele- 
ments of  both  races  ^;  there  is  all  the  strength  of 
will,  keenness  of  logic,  and  depth  of  penetration  that 

^  Cf.  H.  J.  Ford,  Rise  mid  Growth  of  American  Politics,  p.  81. 

2  Cf.  Oliver,  op.  cit.,  pp.  73  and  262. 

3  Cf.  Works,  v.,  343. 

*  For  the  facts  of  Hamilton's  life  see  the  biographies  by  his 
Bon,  J.  C.  Hamilton,  by  H.  C.  Lodge,  J.  T.  Morse,  Jr.,  and  W. 
T.  Sumner. 

^  Cf.  Morse,  Life  of  Alexander  Hamilton,  i.,  2. 


32  Story  of  the  Constitution 

may  be  accorded  to  the  most  typical  of  Scotch  intel- 
lects; side  by  side  with  these  sterner  qualities  there 
was  an  ease  and  grace  of  manner,  a  fluency  of 
speech,  a  gaiety  and  brightness  of  temperament, 
and  a  lucidity  of  statement  truly  Gallic  in  its 
nature. 

The  early  death  of  his  mother  and  the  incapacity 
of  his  father  soon  compelled  the  lad  to  shift  for  him- 
self. At  the  age  of  thirteen  we  find  him  acting  as 
clerk  for  a  certain  Nicholas  Cruger,  of  St.  Chris- 
topher, and  despising  the  grovelling  condition  of  a 
clerk;  so  precocious  was  he  that  within  a  year  he 
was  left  in  charge  of  the  entire  business  while  the 
master  made  an  extended  trip  to  the  Northern  colo- 
nies. His  business  career,  however,  was  destined  to 
be  of  short  duration.  A  hurricane  that  devastated 
the  island  made  such  a  deep  impression  upon  the 
sensitive  youth  that  he  wrote  a  description  of  it  for 
a  local  paper;  the  wonder  and  admiration  of  the 
islanders  were  excited  by  the  beauty  of  his  language 
and  the  vividness  of  his  portrayal,  and  some  of  his 
more  prosperous  relatives,  doubtless  at  the  instiga- 
tion of  the  Rev.  Hugh  Knox,  who  had  been  his  tutor, 
determined  that  such  unusual  gifts  should  have  an 
opportunity  for  unhindered  development,  and  in  con- 
sequence they  decided  to  send  him  to  the  colonies 
of  the  mainland  to  be  educated. 

Hamilton  arrived  in  Boston  in  October  of  the  year 
1772,  and  after  a  short  time  spent  at  Elizabeth,  N.  J., 
he  matriculated  at  the  early  age  of  seventeen  at 
King's  College,  now  Columbia  University.  It  is  an 
interesting  story  which  tells  of  the  desire  of  young 
Hamilton   to  enter   the   College   of   New   Jersey   at 


Alexander  Hamilton  33 

Prinreton,  and  of  his  lack  of  success  because  of  the 
uncoiiipromisinj:;  attitude  takeu  by  the  trustees 
toward  his  desire  to  euter  "  upon  the  condition  that 
lie  might  be  permitted  to  advance  from  class  to  class 
with  as  much  rapidity  as  his  exertions  would  enable 
him  to  do." 

The  lad's  work  at  King's  College  was  pursued  with 
great  success  for  the  next  two  years,  unhindered  by 
the  growing  spirit  of  political  unrest.  The  repres- 
sive measures  enacted  against  the  rebellious  colony 
of  Massachusetts  elicited  the  sympathy  and  active 
co-operation  of  all  the  colonies.  The  spirit  of  united 
action  found  its  first  expression  in  the  Continental 
Congress  of  1774,  and  in  the  actual  assistance  ren- 
dered Massachusetts  in  that  trying  year.  The  air 
was  alive  with  the  breath  of  political  arguments,  and 
that  of  King's  College  not  least  of  all;  its  dis- 
tinguished President,  Dr.  Miles  Cooper,  was  loyal  to 
his  King  and  Church  and  for  his  pains  was  almost 
made  to  suffer  the  fate  of  many  a  less  distinguished 
Tory.  His  escape  was  due  to  the  quickness  of  Ham- 
ilton in  aiding  him  to  flee  by  a  rear  gate  while  the 
mob  was  already  clamoring  at  the  front.^  It  was  no 
doubt  due  to  the  influence  of  Dr.  Cooper,  as  much 
as  to  his  own  strong  love  of  order  and  reverence  for 
tradition,  that  Hamilton  at  first  Inclined  to  the  side 
of  established  government;  but  a  visit  to  Boston  in 
1774  and  contact  with  the  Patriots,  whose  zeal  was 
at  fever  heat,  served  to  dispel  all  doubt  from  his 
mind  and  to  commit  him  unalterably  to  the  Patriot 
cause. 

1  Morse,  Life  of  Alexander  Hamilton,  i.,  18. 


34  Story  of  the  Constitution 

It  was  almost  immediately  upon  his  retnrn  that 
the  chance  came  to  display  his  new-born  enthusiasm; 
being  present  on  July  6th  at  a  public  meeting  "  in 
the  fields,"  he  listened  with  disgust  to  tlie  speakers, 
not  so  much  at  what  they  said  as  at  what  they  left 
unsaid,  and  when  they  had  finished,  this  lad  of  seven- 
teen, slight  of  frame  and  delicate  of  feature,  the  very 
picture  of  youth,  forgetful  of  self  and  mindful  only 
of  the  cause  at  stake,  mounted  the  platform.^  The 
crowd,  too,  apparently  was  dissatisfied  with  what.it 
had  heard,  for  it  greeted  the  stripling  with  the  half- 
mocking,  half-favoring  cry  of  "  The  Collegian !  Hear 
the  Collegian !  "  Almost  at  the  first  sound  of  his 
voice  the  throng  was  silenced;  their  hearts  were 
filled  with  the  great  emotion  that  stirred  his  own 
bosom,  and  they  forgot  the  childlike  face  and  figure; 
gazing  with  rapt  attention  at  his  eager  countenance, 
they  seemed  to  feel  in  him  the  incarnation  of  those 
new  thoughts  and  feelings  which  the  past  ten  years 
had  begotten. 

The  years  from  1775  to  1785  were  big  with  events 
both  in  the  country's  history  and  in  Hamilton's  life. 
His  first  public  speech  was  soon  followed  by  two 
anonymous  pamphlets.  So  able  were  they  that  the 
authorship  was  commonly  attributed  to  Jay  and 
Livingston.  When  it  became  known  that  Hamilton 
was  the  author,  he  was  immediately  accepted  as  a 
leader  of  the  Patriot  cause  and  in  1776  was  placed 
in  command  of  a  New  York  artillery  company  which 
became  in  six  months  the  model  of  the  army  for 
discipline    and    efficiency.     Because    of    ability    dis- 

iC/.  Oliver,  op.  cit.,  pp.  27-28. 


Alexander  Hamilton  35 

played  at  the  battles  of  Long  Island  and  White 
Plains  and  in  the  retreat  across  New  Jersey,  Wash- 
ington appointed  him  a  member  of  the  general  staff, 
with  the  commission  of  lieutenant-colonel  in  the 
Continental  army.  From  the  first  he  acted  as  sec- 
retary, and  for  five  years  he  was  indispensable  to 
Washington.  A  warm  personal  friendship  sprang 
up  between  the  two  men  which  suffered  but  a  single 
break,  that  of  1781,  when  Hamilton,  incensed  at  a 
rebuke  administered  by  Washington,  resigned.^  De- 
sire for  military  glory  doubtless  played  its  part  in 
the  resignation,  for  he  soon  took  the  field  as  a  lieu- 
tenant-colonel of  the  New  York  State  troops,  and 
was  fortunate  enough  to  be  present  at  the  siege  of 
Yorktown,  where  he  headed  a  storming  party  and 
was  brevetted  colonel  for  bravery  in  battle.  As  the 
war  was  practically  at  an  end,  Hamilton  resigned 
his  commission  and  began  the  study  of  law  in  New 
York,  where  his  admission  to  the  bar  was  soon 
signalled  by  a  rapid  rise  to  the  head  of  the  pro- 
fession. 

By  his  marriage  to  Miss  Elizabeth  Schuyler  in  1780 
Hamilton  had  allied  himself  with  the  distinguished 
Schuyler  family,  and  this  alliance  brought  him 
friends  and  connections  on  a  large  scale.  In  No- 
vember, 1782,  he  took  his  seat  in  the  Continental 
Congress,  then  sitting  at  Philadelphia,  that  same 
Congress  which,  after  its  hasty  flight  from  Philadel- 
phia, sought  refuge  in  Nassau  Hall  at  Princeton  in 
June,  1783.  Finding  himself  in  a  hopeless  minority 
and  realizing  that  his  efforts  were  futile,  he  resigned, 

1  Cf.  Works,  ix.,  232,  for  Hamilton's  account  in  a  letter  to 
his  father-in-law. 


36  Story  of  the  Constitution 

convinced  above  all  things  that  the  Congress  and  the 
Articles  of  Confederation  must  be  swept  away  be- 
fore the  country  could  be  rescued  from  the  anarchy 
into  which  it  was  fast  drifting.^  Freed  by  his  foreign 
birth  from  the  local  attachments  which  made  it  so 
difficult  for  most  men  to  transfer  any  part  of  their 
allegiance  to  a  national  government,  he  could  per- 
ceive the  need  of  a  strong  central  power.  His  sym- 
pathies were  ever  national,  not  local;  not  New  York 
but  America  was  the  land  of  his  adoption.  "  The 
great  idea,  of  which  he  was  the  embodiment,  was 
that  of  nationality."  ^ 

As  early  as  1780,  in  the  midst  of  his  arduous  duties 
as  aide-de-camp  to  Washington,  he  had  discovered 
and  disclosed  in  a  letter  to  James  Duane  the  de- 
ficiencies of  the  Confederation  and  the  way  in  which 
these  defects  might  be  remedied.^  "  The  fundamental 
defect,"  he  WTote,  "  is  a  want  of  power  in  Congress." 
"  But  the  Confederation  itself  is  defective,  and  re- 
quires to  be  altered.  It  is  neither  fit  for  war  nor 
peace."  The  complete  inefficiency  of  the  Confedera- 
tion in  its  conduct  of  the  war  was  a  matter  of  which 
he  could  judge  from  practical  experience;  the  ill-fed 
and  ill-clothed  troops  bore  convincing  testimony  to 
his  mind  of  the  inability  of  an  assemblage  of  diplo- 
mats to  carry  on  the  struggle  to  a  successful  con- 
clusion. The  heart  of  the  difficulty  lay  in  the 
disordered  finances;  the  remedy  could  only  be  found 
if  the  Confederation  "  should  give  Congress  complete 
sovereignty,  except  as  to  that  part  of  internal  police 

1  Cf.  Oliver,  op.  cit,  pp.  125-126. 

~  Lodge,  Life  of  Alexander  Hamilton,  p.  282. 

3C/.  Works,  i.,  213. 


Alexander  Hamilton  37 

which  relates  to  the  rights  of  individuals,"  if 
the  direction  of  affairs  should  be  placed  in  the 
hands  of  competent  individuals,  and  if  a  national 
bank  should  be  established.  He  outlined  the  plan 
of  such  a  bank  and  urged  it  as  indispensable  in 
securing  the  certain  revenues  without  which  "  gov- 
ernment can  have  no  power." 

It  was  in  this  same  letter  that  he  gave  expression  to 
a  view  that  may  be  taken  as  typical  of  all  his  later 
attitude  toward  constitutional  interpretation.  After 
reproaching  Congress  for  not  having  made  better  use 
of  its  powers,  he  declared  that  "  undefined  powers 
are  discretionary  powers,  limited  only  by  the  object 
for  which  they  are  given — in  the  present  case  the 
independence  and  freedom  of  America." 
*  During  the  three  years  following  his  withdrawal 
from  Congress,  Hamilton  devoted  himself  to  his  pro- 
fession and  to  the  creation  of  a  stronger  national 
sentiment  among  the  people.  When  the  opportunity 
came  to  set  in  motion  the  train  of  events  that  he 
hoped  would  lead  to  the  consummation  he  so  de- 
voutly desired,  he  was  not  slow  to  avail  himself  of 
it.  He  was  the  one  to  seize  upon  the  Annapolis 
Convention  as  the  psychological  moment  to  appeal 
for  concerted  action  to  revise  the  (moribund  Articles 
of  Confederation  in  order  to  make  them  equal  to  the 
exigencies  of  the  Union.^ 

The  particularist  spirit  of  independent  statehood 
was  nowhere  stronger  than  in  the  controlling  faction 
in  Hamilton's  own  State.  Governor  Clinton  and  his 
party  dreamed  of  a  great  State  of  New  York,  inde- 

1  C/.  Oliver,  op.  cii.,  p.  142. 


38  Story  of  the  Constitution 

pendent,  free,  and  mighty  by  reason  of  its  favorable 
geographical  position,  and  in  this  great  State  Clin- 
ton, its  governor,  would  be  greater  than  ever  he 
might  hope  to  be  in  a  New  York  that  was  merely 
one  of  a  Confederation  of  thirteen.  So  in  the  As- 
sembly of  1786,  which  chose  the  delegates  to  the 
Constitutional  Convention  called  to  meet  in  Phila- 
delphia in  the  following  spring,  all  that  Hamilton 
could  secure  was  his  own  appointment  among  the 
delegates.  The  two  other  delegates  chosen  by  the 
Legislature  were  followers  of  Clinton,  men  given  over 
completely  to  the  spirit  of  separatism,  ready  and 
willing,  even  determined,  to  sacrifice  the  Union  to  the 
selfish  interests  of  individual  statehood.^  Yates  and 
Lansing  were  men  of  unblemished  personal  character, 
but  the  narrowness  and  selfishness  of  their  political 
views  has  condemned  them  forever.  Yet  there  is  a 
crumb  of  comfort  to  be  extracted  from  their  action, 
for  their  withdrawal  from  the  Convention  stands  as 
an  everlasting  proof  of  their  belief  that  the  Conven- 
tion had  started  upon  a  revolutionary  and  wholly 
unjustifiable  course;  that  it  had  abandoned  its  sole 
function  of  revising  the  Articles  of  Confederation. 
To  attempt  to  formulate  a  constitution  upon  any 
other  basis  than  that  of  the  Articles,  said  Lansing, 
was  to  do  something  to  which  the  State  of  New 
York  would  never  consent,  and  had  she  realized  that 
such  would  be  the  action  of  the  Convention,  would 
never  have  sent  delegates.^ 

Almost  immediately  after  the  opening  of  the  Con- 

1  FLske,  Critical  Period,  p.   225,  characterizes  them  as  "  ex- 
treme and  obstinate  Antifederalists." 

2C/.  Documentary  History  of  the  Constitution,  iii.,  129. 


Alexander   Hamilton  39 

vention  there  was  presented  to  it  for  its  determination 
the  question  as  to  the  kind  of  union  that  shouhl  be 
contemplated  in  the  new  Constitution.  Tlie  struggle 
over  this  question  centred  round  the  "  Virginia  "  and 
"  New  Jersey  "  plans.  There  could  be  no  question 
which  one  of  these  Hamilton  would  prefer  if  com- 
pelled to  make  choice.  Among  the  many  who  at  this 
time  showed  distrust  of  the  spirit  of  democracy,  none 
stands  out  more  prominently  than  he.  Though  Sher- 
man of  Connecticut  might  say  that  "  tlie  people 
should  have  as  little  to  do  as  may  be  about  the 
Government,"  ^  and  Gerry  that  "  the  evils  we  experi- 
ence flow  from  the  excess  of  democracy,"  ^  it  was 
Hamilton  who  had  the  courage  to  propose  to  the 
Convention  a  scheme  of  government  which  left  little 
or  no  place  for  popular  power,  in  which  the  Presi- 
dent and  Senate  should  hold  office  during  good  be- 
havior and  the  governors  of  the  States  should  be 
appointed  by  the  general  government,^  For  five 
hours  Hamilton  held  the  Convention  under  the  sway 
of  his  eloquence  while  he  set  forth  his  ideas  on 
government.  A  brilliant  speech,  which,  says  Fiske, 
"  while  applauded  by  many,  was  supported  by  none." 
Up  to  this  time  Hamilton  had  taken  very  little  part 
in  the  proceedings  of  the  Convention.  The  reason 
for  this  we  do  not  know;  perhaps  it  was  that  he 
was  sceptical  of  the  result,  and  believed  the  Con- 
vention incapable  of  agreement  upon  any  plan  that 


1  Doc.  Hist,  iii.,  26. 

2  Ibid.,  iii.,  26. 

3  Ibid.,  iii.,  149  ff.,  and  Works,  i.,  350  ff.  Later  in  the  proceed- 
ings of  the  Convention  Hamilton  proposed  a  three  years'  term 
for  the  President. 


40  Story  of  the  Constitution 

would  be  strong  enough  to  save  the  Union;  perhaps 
it  was  because  he  was  constantly  outvoted  by  his 
colleagues  from  New  York  and  was  embarrassed 
thereby.  Whatever  the  reason  may  have  been,  we 
are  always  surprised  and  disappointed  that  he  did 
not  play  a  larger  part  in  determining  the  form  of 
the  Constitution. 

But  there  was  little  hope  of  recognition  from  that 
assembly  of  such  views  as  Hamilton  proclaimed.  It 
may  have  been  quite  true,  as  he  said,  that  "  the 
British  government  was  the  best  in  the  world,"  but 
it  would  have  been  folly  to  suppose  that  the  Con- 
vention would  accept  or  act  in  accordance  with  such 
doctrine.  Nor  are  we  led  to  believe  that  Hamilton 
was  so  devoid  of  political  sagacity  as  to  suppose  it 
would.  Much  more  probable  does  it  seem  that  he 
wanted  to  go  on  record  as  the  advocate  of  a  strongly 
centralized  government,  if  thereby  he  might  convince 
any  of  the  importance  of  strength  as  an  element  of 
government.  The  Articles  of  Confederation  were 
cursed  beyond  all  else  by  weakness ;  he  saw  it  clearly ; 
he  despaired  of  accomplishing  what  he  desired;  what 
better  could  he  do  than  to  set  a  high  standard  of 
what  he  believed  to  be  best?  Too  high  a  standard 
to  be  realized,  perhaps,  but  in  the  reaction,  w^ould 
the  members  of  the  Convention  go  quite  so  far  on 
the  road  toward  a  loose  confederacy?  Might  they 
not  be  emboldened  to  give  a  fair  measure  of  power 
to  the  central  government?  Finding  himself  unable 
to  contribute  to  the  deliberations,  and  knowing  full 
well  that  any  action  he  might  take  would  be  re- 
garded as  purely  personal,  and  in  no  sense  as  the 
action  of  his  State,   Hamilton   withdrew  from   the 


Alexander  Hamilton  41 

Convention,  not  to  return  again  until  near  the  close 
of  its  sessions,  in  time  to  affix  his  signature  to  the 
final  document. 

Though  Hamilton  found  the  "  New  Jersey  "  plan 
"  utterly  untenable,"  and  though  "  he  saw  great  diffi- 
culty in  establishing  a  good  national  government  on 
the  Virginia  plan,"  yet  when  he  perceived  that  the 
Constitution  was  the  best  that  could  be  had  under 
tlie  circumstances,  that  it  offered  a  chance  of  escape 
from  the  anarchical  condition  into  which  the  country 
had  fallen,  there  was  none  so  zealous  as  he  in  the 
advocacy  of  its  adoption.  Associating  with  himself 
Madison  and,  for  a  short  period,  Jay,  he  began  the 
publication  of  that  now  famous  series  of  papers  called 
the  Federalist.  Here  was  set  forth,  in  a  manner  since 
unrivalled,  the  very  essence  of  the  new  government 
that  was  to  be  established.^  With  the  clearest  of 
logic  there  w^as  demonstrated  the  evils  of  the  Con- 
federation and  the  fashion  in  which  these  evils  were 
to  be  cured  by  the  new  federal  arrangement;  bril- 
liant in  style  and  persuasive  in  manner,  these  papers 
went  forth  carrying  conviction  with  them.  To  them 
more  than  to  any  other  one  agency  was  due  the 
final  adoption  of  the  Constitution,  for  though  writ- 
ten for  the  people  of  New  York  State,  their  influence 
was  felt  in  all  the  States  which  had  not  yet 
acted.2  To  this  day  they  remain  an  authoritative 
exposition  of  our  fundamental  instrument  of  govern- 
ment and  a  testimony  to  the  insight  and  learning 

1  Fiske,  op.  cit,  p.  225,  is  led  by  his  enthusiasm  to  describe  it 
as  "  the  greatest  treatise  on  government  that  has  ever  been 
written;" 

~  There  is  a  great  divergence  of  opinion  as  to  the  actual  in- 


42  Story  of  the  Constitution 

of  their  authors.  To  Hamilton  is  due  the  credit  of 
originating  the  idea  and  of  contributing  by  far  the 
larger  number  of  the  papers. 

With  the  conclusion  of  the  Federalist,  Hamilton's 
labors  in  behalf  of  the  adoption  of  the  Constitution 
were  by  no  means  over.  The  Legislature  of  New 
York  was  hostile  to  the  Constitution  and  was  under 
the  control  of  Governor  Clinton.  When  Hamilton 
began  his  contest  with  the  majority,  defeat  seemed 
inevitable;  that  he  won  in  the  end  and  thereby  saved 
New  York  for  the  Union  and  mayhap  the  Union  it- 
self, may  well  be  accounted  one  of  his  greatest 
triumphs.  It  was  indomitable  will,  the  tact  of  a 
diplomat,  the  skill  of  a  parliamentary  tactician,  the 
eloquence  of  a  persuasive  personality,  and  the  just- 
ness of  the  cause  that  triumphed  over  a  bigoted  and 
selfish  opposition.^  It  was  no  more  than  fitting 
that  in  the  celebration  of  the  victory  in  New 
York  City,  the  ship  of  state  should  be  inscribed 
Hamilton. 

It  would  be  impossible  to  bring  within  our  view 
all  of  Hamilton's  conclusions  regarding  the  nature  of 
the  new  Union.  It  may  be  worth  while,  however,  to 
consider  such  as  have  been  and  still  are  the  battle- 
ground of  party  strife. 

In  the  first  place,  Hamilton  accepted  as  indisputable 


fluence  exerted  by  the  Federalist.  In  support  of  the  view  pre- 
sented in  the  text,  the  following  may  be  noted:  Curtis,  Con- 
stitutional  History,  i.,  280;  Fiske,  Critical  Period,  p.  342;  Oliver, 
op.  cit.,  p.  168;  Morse,  op.  cit.,  i.,  266;  Lodge,  op.  cit.,  p.  67.  For 
the  contrary  view,  J.  B.  McMaster,  History,  i.,  484,  and  A.  C. 
McLaughlin,  The  Confederation  and  the  Constitution,  p.  308. 
1  Cf.  Oliver,  op.  cit.,  pp.  176-179. 


Alexander    Hamilton  43 

the  view  that  the  Constitution  was  not  an  amended 
form  of  the  Articles  of  Confederation,  but  that  it 
was  a  "  confederated  republic,"  "  an  assemblage  of 
societies,  or  an  association  of  two  or  more  states  into 
one  state."  It  was  more  than  a  confederacy,  inas- 
much as  the  power  of  the  central  government  could 
be  exerted  upon  individuals  and  not  merely  upon 
States;  it  was  less  than  a  consolidated  State,  because 
the  existence  of  the  several  States  had  been  most 
carefully  preserved.^  The  Convention  had  aimed  only 
at  a  partial  consolidation  of  the  States  in  a  union 
in  which  they  retained  all  rights  previously  enjoyed 
and  which  had  not  been  expressly  delegated  to  the 
Federal  Government.  The  delegation  of  powders  was 
not  only  to  the  Federal  Government  but  to  the  State 
governments  as  well.  This  conception  of  a  delega- 
tion of  power  rests  upon  the  view  which  sees  in  the 
people  the  sovereign,  the  possessor  of  supreme  powers ; 
a  part  of  these  powers  the  jDcople  had  delegated  to 
the  State  governments,  a  part  they  would  delegate 
to  the  Federal  Government  by  the  adoption  of  the 
Constitution,  and  still  another  part  they  would  re- 
tain.- It  is  the  old  idea  of  Locke  and  the  people's 
power  of  revolution  viewed  from  a  different  angle 
and  wearing  a  slightly  altered  dress.  Hamilton, 
however,  regarded  the  Federal  Government  as  the 
judge  of  its  own  powers;  if  it  overstepped  its  bounds, 
the  people  were  to  judge  of  the  fact  and  to  institute 
the  correction.  The  Constitution  to  Hamilton  was 
not  a  treaty,  but  "  the  supreme  law  of  the  land,  a 

1  Cf.  The  Federalist,  Ford's  edition,  Nos.  9,  15,  and  16,  and 
Works,  n.,  9. 
--Ibid.,  No.  23. 


44  Story  of  the  Constitution 

government,  which  is  only  another  word  for  political 

POWER   AND   SUPREMACY."  ^ 

The  States,  moreover,  were  in  no  danger;  in  pro- 
portion as  they  stand  nearer  to  the  people  will  they 
demand  a  greater  share  of  their  affection ;  "  we  love 
our  families  more  than  our  neighbors;  we  love  our 
neighbors  more  than  our  countrymen  in  general.  On 
these  principles,  the  attachment  of  the  individual 
will  be  first  and  forever  secured  by  the  State  govern- 
ments." ^  The  very  existence  of  the  Federal  Union 
rests  upon  the  States,  and  the  balance  between  the 
national  and  State  governments  is  of  the  utmost  im- 
portance. "  It  forms  a  double  security  to  the  people. 
If  one  encroaches  on  their  rights  they  will  find  a 
powerful  protection  in  the  other."  ^  On  the  other 
hand,  speaking  of  those  who  stood  for  a  complete 
freedom  of  the  States  within  the  Union,  we  find 
Hamilton  using  these  significant  words :  "  They 
seem  to  aim  at  things  repugnant  and  irreconcilable; 
at  an  augmentation  of  federal  authority,  without  a 
diminution  of  state  authority;  at  a  sovereignty  in 
the  Union  and  complete  independence  in  the  mem- 
bers. They  still  in  fine  seem  to  cherish  with  blind 
devotion  the  political  monster  of  an  imperium  in 
imperio"  * 

On  the  question  of  the  separation  of  the  powers  of 
government,  that  doctrine  of  Montesquieu's  which 
was  itself  based  upon  a  misconception,  we  do  not 
find  the  doctrinaire  opinion  which  has  so  often  made 

1  Federalist,  No.  33. 

2  Works,  ii.,  70.     Cf.  Federalist,  Nos.  17  and  30. 
3/6id.,  ii.,  28. 

*  Federalist,  No.  15. 


Alexander  Hamilton  45 

itself  felt  to  the  detriment  of  the  country  in  the 
relations  of  the  various  branches  of  government.  A 
separation  of  legislative,  executive,  and  judicial  func- 
tions was  regarded,  to  be  sure,  as  a  cardinal  prin- 
ciple of  political  philosophy,  at  least  in  those 
governments  in  which  the  citizens  enjoy  the  bless- 
ings of  liberty  and  freedom.  In  Hamilton's  eyes  the 
separation  could  not  and  must  not  be  complete.  The 
Judiciary,  having  "  neither  force  nor  will  but  merely 
judgment,"  should  be  independent;  the  Legislative 
and  Executive  were  mutually  dependent  and  should 
act  merely  as  checks  upon  each  other,  not  as 
blocks  to  bring  the  action  of  government  to  a 
standstill.^ 

That  Hamilton  had  fathomed  the  true  nature  of 
the  new  government  is  clearly  manifested  in  his  reply 
to  the  objection  made  to  the  Constitution  on  the 
ground  that  it  did  not  contain  a  Bill  of  Rights. 
Such  a  Bill  of  Rights,  he  thought,  would  furnish  no 
security  to  liberty.  In  origin  these  bills  were  stipu- 
lations between  kings  and  their  subjects  by  which 
the  latter  secured  the  abridgment  of  the  royal  pre- 
rogative; consequently  there  was  no  place  for  them 
in  a  constitution  founded  upon  the  power  of  the 
people.  "  We,  the  people  of  the  United  States  .  .  . 
do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America."  Here,  he  said,  was  "  a 
better  recognition  of  popular  rights  than  volumes  of 
those  aphorisms  which  make  the  principal  figure  in 
several  of  our  State  bills  of  rights."  ^ 


1  Federalist,  No.  78,  and  Ford,  op.  cit,  p.  81. 
-  Federalist,  No.  84. 


46  Story  of  the  Constitution 

Important  as  was  Hamilton's  part  in  securing  the 
adoption  of  the  Constitution  and  in  giving  us  a  theo- 
retical exposition  of  its  nature,  it  was  insignificant 
when  compared  with  the  tremendous  influence  he 
exerted  upon  the  living  form  this  lifeless  docu- 
ment should  take.^  The  pressing  need  of  the  govern- 
ment under  the  Articles  of  Confederation  had  been 
money.  The  failure  of  the  States  to  furnish  the 
requisitions  made  upon  them  had  resulted  in  the 
bankruptcy  of  the  general  government,  with  a  con- 
sequent loss  of  respect  at  home  and  abroad.  The 
immediate  cause  of  the  Constitutional  Convention  lay 
in  the  financial  necessities  of  the  government  as 
illustrated  by  its  lack  of  power  to  impose  taxes  and 
to  regulate  commerce.  So  it  became  the  first  and 
most  important  duty  of  the  new  Federal  Govern- 
ment to  establish  itself  upon  a  firm  financial  footing. 
The  one  man  suited  for  the  task  was  Hamilton  and 
to  him  Washington  turned.  Appointed  Secretary  of 
the  Treasury  in  1789,  he  carried  through  the  first 
Congress  that  great  series  of  acts  providing  for  the 
assumption  of  the  foreign  and  domestic  obligations, 
both  of  the  Confederation  and  of  the  States ;  for  levy- 
ing an  excise  and  for  the  establishing  of  a  National 
Bank.  In  tlie  words  of  Webster,  he  "  smote  the  rock 
of  the  national  resources,  and  abundant  streams  of 
revenue  gushed  fortli ;  he  touched  the  dead  corpse 
of  Public  Credit,  and  it  sprang  upon  its  feet." 

The  failure  of  the  Confederation  had  been  due  to 
financial  weakness;  the  safety  of  the  new  government 
lay  in  financial  strength ;  Hamilton  felt  that  he  must 

1  Cf.  Oliver,  op.  cit.,  pp.  183-248. 


Alexander  Hamilton  47 

bind  men  to  it  by  hoops  stronger  than  steel ;  that 
he  must  replace  affection  by  interest  and  offset  lack 
of  patriotism  by  financial  obligation.  Money  was  to 
him  ''  the  vital  principle  of  the  body  politic."  ^ 
Hence  it  was  that  he  took  the  first  step  toward  en- 
listing the  men  of  wealth  in  the  cause  of  the  new 
government.  With  the  assumption  of  the  domestic 
debt  by  the  Federal  Government,  a  host  of  indi- 
viduals were  made  to  feel  that  its  success  was  their 
prosperity,  its  failure  their  ruin,  and  by  the  very 
fact  of  the  assumption  of  the  State  debts  the  Federal 
Government  took  its  stand  ahead  of  the  States  as 
something  bigger  and  better  than  they.  The  men  of 
the  States  looked  beyond  them,  in  this  one  respect  at 
least,  to  a  higher  power.  The  assumption  of  the  State 
and  national  debts  was,  however,  but  one  step  in 
the  process  of  allying  wealth  and  central  govern- 
mental authority.  Preceding  it  w^as  the  passage  of 
an  act  of  lasting  consequence  providing  for  the  regu- 
lation of  commerce  by  the  imposition  of  important 
duties,  a  tariff  which  was  to  furnish  both  revenue 
and  protection.  Following  the  assumption  bills 
came  an  act  levying  an  excise  tax  and  providing  for 
an  internal-revenue  service.  As  the  crowning  stroke 
in  Hamilton's  policy  of  centralization,  an  act  was 
passed  providing  for  the  establishment  of  a  National 
Bank. 

Here  for  the  first  time  there  arose  the  question  of 

1  Federalist,  No.  30.  As  early  as  1780  in  a  letter  to  Morris 
in  which  he  advocated  the  establishment  of  a  National  Bank, 
Hamilton  had  realized  the  value  of  uniting  "  the  interest  and 
credit  of  rich  individuals  with  those  of  the  State." — Works,  iii., 
332. 


48  Story  of  the  Constitution 

the  extent  of  the  powers  of  Congress.  The  financial 
needs  of  the  government  were  so  urgent  that  little 
thought  had  been  given  to  the  title  of  the  act  to 
levy  import  duties;  it  was  no  time  for  questioning 
the  purposes  of  the  bill  beyond  that  of  raising  reve- 
nue and  so  the  power  of  Congress  to  protect  infant 
industries  passed  unchallenged.  The  funding  and 
assumption  bills  might  well  be  opposed  on  the 
grounds  of  expediency,  or  the  resulting  position  of 
inferiority  of  the  States,  but  there  could  be  no  serious 
claim  presented  that  Congress  had  no  right  to  do 
these  things.  Far  otherwise  was  it,  however,  with 
the  proposal  to  establish  a  National  Bank.  It  was 
vigorously  objected  that  nowhere  does  the  Constitu- 
tion give  Congress  the  right  to  charter  such  a  bank; 
but  on  the  other  hand  the  tenth  amendment  had  been 
added  especially  providing  that  "  the  powers  not 
delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively  or  to  the  people."  To  this 
objection  Hamilton  made  ready  answer  with  another 
provision  of  the  Constitution,  the  so-called  "  Elastic 
Clause,"  the  fertile  source  of  the  "  implied  powers," 
which  provides  that  Congress  shall  have  the  right 
"  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Con- 
stitution in  the  Government  of  the  United  States."  ^ 
Hamilton,  in  an  opinion  which  Judge  Story  pro- 
nounced "  one  of  the  most  masterly  disquisitions 
that    ever    proceeded    from    the    mind    of    man," 

lArt.  I.,  Sec.  8,  clause  18. 


Alexander  Hamilton  49 

claimed  that  the  establislinieiit  of  a  National  liaiik 
\vas  a  proper  iiieasiire  and  one  needed  to  set  the 
national  government  on  its  feet.  His  opponents,  led 
by  Jefferson,  contended  that  the  bank  was  not  neces- 
sary and  if  not  necessary,  it  could  not  be  established 
from  motives  of  mere  convenience.^ 

The  possibilities  of  the  strength  of  the  Federal 
Government  from  these  measures  of  Hamilton  rapidly 
began  to  excite  alarm,  but  the  moneyed  and  manufac- 
turing classes  were  already  allied  with  the  Federal 
Government  and  the  bank  was  established.  With 
the  establishment  of  the  National  Bank,  Hamilton's 
constructive  efforts  in  shaping  the  future  of  the  Con- 
stitution were  finished;  he  had  left  the  impress  of 
his  genius  upon  the  instrument  of  government,  and 
had  marked  out  the  path  that  national  development 
has  ever  since  pursued.  He  sought  to  establish  a 
government  in  which  wealth  should  stand  at  the 
helm,  guiding  and  steadying  the  ship  of  state.  He 
distrusted  the  turbulence  of  democracy  and  believed 
in  the  rich  and  the  well-born ;  he  feared  the  multitude 
and  trusted  the  chosen  few.  For  the  Republic  he 
sought  strength  in  wealth,  and  desired  the  national 
government  to  reach  out,  under  the  doctrine  of  loose 
construction,  for  all  those  powers  that  might  be 
proper  for  the  existence  of  a  nation. 

Upon  the  issue  presented  by  these  questions,  the 
natural  divergence  between  Hamilton  and  Jefferson 
widened  until  they  stood   at  the  head  of  opposing 

1  Works,  i.,  445  ff.  Opinion  as  to  the  Constitutionality  of  the 
Bank  of  the  United  States.  Jefferson's  opinion  may  be  found 
in  his  Works,  Memorial  edition,  iii.,  145-153.  For  extracts 
from  both  opinions  see  the  Appendix. 


50  Story  of  the  Constitution 

factions,  tlie  beginnings  of  tlie  two  great  parties 
which,  despite  changes  of  name,  have  in  essence  re- 
mained the  same.  To-day,  as  in  the  presidency  of 
Washington,  the  people  are  arrayed  under  the  ban- 
ners of  "  loose  "  and  "  strict  "  construction,  though 
our  speech  may  be  in  slightly  altered  terms.  The 
rivalry  and  jealousy  between  Hamilton  and  Jefferson 
became  so  keen  that  in  1794  Jefferson  retired  from 
the  Cabinet;  in  the  next  year  Hamilton  resigned  to 
give  attention  to  his  personal  affairs. 

The  remaining  years  of  Hamilton's  life  were  not 
purposeless,  though  they  added  nothing  to  his  already 
great  achievements;  they  were  spent  in  the  effort 
to  continue  the  government  in  the  course  upon  which 
he  had  started  it,  and  his  must  have  been  a  strange 
nature  that  would  not  have  been  saddened  by  seeing 
the  country  slowly  but  surely  drifting  away  from  his 
ideal  and  beyond  his  control.  The  Virginia  Resolu- 
tions of  1798,  with  their  claim  of  the  right  of  the 
States  to  judge  of  the  constitutionality  of  laws,  and 
the  Kentucky  Resolutions  of  the  next  year,  with  that 
insidious  doctrine  of  the  right  of  nullification  which 
had  as  its  logical  successor  the  yet  more  dan- 
gerous right  of  secession,  filled  his  mind  with  anxious 
forebodings.  He  loved  with  a  passionate  ardor  the 
nation  he  had  done  so  much  to  create.  "  If  this 
Union  w^ere  to  be  broken,"  he  cried,  "  it  would  break 
my  heart." 

In  the  election  of  Jefferson,  Hamilton  witnessed 
the  triumph  of  the  most  implacable  foe  to  all  his 
ideas — a  triumph  to  wliich  his  own  sacrifice  of  self 
to  patriotism  contributed — and  the  dark  shadow  of 
failure  fell  for  the  first  time  across  his  path,  but  the 


Alexander  Hamilton  51 

bitterness  of  liis  last  years  must  liave  been  tempered 
by  that  great  national  act  to  which  he  saw  his  oppo- 
nent driven — the  purchase  of  Louisiana.  We  must 
ever  sincerely  lament  his  tragic  death  on  the  fields 
of  Weehawken,  which  robbed  our  country  of  its 
greatest  intellect  while  still  in  its  prime;  for  his 
own  sake  we  can  but  wish  he  might  have  been 
spared  another  decade  to  witness  the  survival  and 
ultimate  triumph  of  the  principles  he  cherished  so 
passionately. 


Ill 

James  Wilson.      Growth  through 
Speculative   Forecast. 


S3 


JAMES  WILSON 

1742.     Sept.  14.  Born  near  St.  Andrews,  Scotland. 

1757.  At  Universities  of  Glasgow,  Edinburgh,  and  St. 

Andrews. 

1765.  Came  to  America. 

1765-66.  In  New  York. 

1768.  Admitted  to  Philadelphia  bar. 

1769.  Moved  to  Carlisle. 

1778.  Settled  in  Philadelphia. 

1775—78    "i 

iryoo  Qo*  f  Continental    Congress.     Signer  of   Declaration 

l78'^-87    \  Independence. 

1787.  Member  of  Constitutional  Convention. 

1788.  Member  of  Pennsylvania  Convention. 

1789-90.  Member  of  State  Constitutional  Convention. 

1789-98.  Associate  Justice  of  U.  S.  Supreme  Court. 

1790-92.  Professor  of  Law  in   the  College  of  Philadel- 

phia, which  in  1792  became  the  University 
of  Pennsylvania. 

1798.     Aug.  28.  Died  at  Edenton,  N.  C. 


54 


Ill 

James  Wilson.     Growth  through  Speculative 
Forecast. 

FOR  depth  of  legal  learning  and  soundness  of 
judgment  in  political  affairs,  James  Wilson  of 
Pennsylvania  was  unsurpassed  by  any  member  of 
the  Constitutional  Convention.  Hamilton  may  have 
been  more  brilliant  or  Madison  a  deeper  student  of 
the  art  of  government,  but  neither  could  rival  Wil- 
son in  insight  and  originality.  With  all  the  logical 
precision  of  his  Scotch  intellect,  he  surveyed  the  con- 
ditions around  him,  analyzed,  classified,  and  arranged 
the  facts  of  political  life  in  their  proper  categories, 
and  deduced  from  them  his  conclusions  with  respect 
to  the  kind  of  government  needed.  There  were  not 
lacking  others  who  did  the  same  thing,  but  they 
failed  to  equal  Wilson  in  penetration  and  the 
ability  to  follow  principles  to  their  logical  conclu- 
sions. No  member  of  the  Convention  had  a  firmer 
grasp  than  did  Wilson  of  the  one  great  question  to 
be  settled — that  of  union  with  independence. 

The  creation  of  a  new  state,  national  in  the  ex- 
tent of  its  Jurisdiction  and  supreme  in  matters  of 
common  interest,  with  the  preservation  of  State  free- 
dom in  purely  local  matters,  was  a  novelty  in  the 

55 


56  Story  of  the  Constitution 

realm  of  political  speculation.  Confederations  there 
had  been  a  plenty;  we  ourselves  had  made  trial  of 
one  and  because  of  its  failure  the  Convention  had 
been  called.  Many  desired  to  adhere  to  the  old  form 
of  government,  deeming  it  sufficient  if  its  powers 
should  be  enlarged;  others  desired  a  consolidation 
of  the  States  into  one  wherein  the  individual  States 
should  be  only  administrative  districts.  Between 
these  two  views  stands  the  one  finally  adopted  by  the 
Convention.  The  idea  of  a  Federal  State,  embracing 
all  the  people  of  the  component  States  but  not  de- 
pendent upon  the  States  themselves,  within  which 
the  individual  States  continue  an  independent  ex- 
istence, was  both  new  and  complex.  Other  men 
perceived  certain  phases  and  aspects  of  this  new  con- 
ception, but  none  possessed  so  comprehensive  a  view, 
as  did  Wilson,  of  this  Federal  Republic,  which  was 
to  be  a  state  above  States,  a  state  embracing  States, 
and  yet  not  composed  of  those  States  so  much  as 
of  the  people  within  them  who  were  regarded  as 
forming  a  single  nation. 

As  we  look  back  upon  the  men  of  the  Convention, 
Wilson  seems  to  have  had  the  clearest  conception 
of  the  future  course  of  government  in  the  United 
States;  his  ideas  were  those  toward  which  we  have 
ever  since  been  working.^  Like  Hamilton,  he  not 
only  took  part  in  the  work  of  the  Convention,  but 
also  in  the  far  more  important  work  of  infusing  into 
the  dead  body  of  the  written  document  the  living 

1  Cf.  B.  A,  Konkle,  James  Wilson  and  the  Constitution;  and 
L.  H.  Alexander,  James  Wilson,  Patriot,  and  The  Wilson  Doc- 
trine, p.  14,  for  a  quotation  from  President  Roosevelt's  speech 
at  Philadelphia,  October  4,  1906. 


James  Wilson  57 

power  of  practice.  Hamilton's  great  service  lay  in 
organizing  the  administrative  department  of  the  gov- 
ernment along  the  lines  of  its  financial  life. '  Wilson 
played  a  less  obtrusive  but  a  scarcely  less  import- 
ant part  in  setting  in  motion  the  judicial  functions 
outlined  in  the  Constitution  and  more  fully  deter- 
mined by  the  first  Congress,  in  establishing  the 
Supreme  Court  upon  the  lofty  plane  it  has  since 
preserved  and  in  making  it  the  national  organ  of  a 
truly  national  state.M 

Until  within  recent  years  Wilson  and  his  work 
were  known  and  appreciated  only  by  the  few  who 
delved  into  the  dusty  records  of  his  time;  even  now 
there  are  many  who  do  not  associate  his  name  with 
any  great  idea,  and  the  number  who  rank  him  as 
he  so  justly  deserves,  along  with  the  great  men  of 
the  revolutionary  era,  is  extremely  small ;  but  thanks 
to  the  many  students  of  this  epoch  of  American  his- 
tory, the  justification  of  James  Wilson  as  one  of  the 
great  thinkers  of  our  country  advances  steadily.  It 
is  not  altogether  clear,  when  we  review  his  long  and 
important  services,  why  he  should  have  been  lost 
sight  of  so  completely  after  his  death.  Doubtless 
the  heat  of  party  passions  had  somewhat  to  do  with 
belittling  his  services  and  obscuring  his  name.  Men 
who  in  1788  had  burned  in  effigy  "  James  Wilson, 
the  Caledonian,"  for  his  "  aristocratic  tendencies," 
for  his  love  of  a  strong  government  and  his  advocacy 
of  the  Federal  Constitution  within  the  State  of 
Pennsylvania,  would  not  soon  lay  aside  their  hatred ; 
moreover,    with    the    triumph    of    the    Democratic- 

1  Cf.  H.  L.  Carson,  The  Supreme  Court  of  the  United  States. 


$8  Story  of  the  Constitution 

Republicans  within  two  years  after  his  death,  his 
views  could  have  found  acceptance  with  only  a  small 
minority  of  the  people.  Doubtless,  too,  the  fact  that 
his  large  fortune  was  swept  away  just  before  his 
death  cast  a  shadow  upon  the  fame  of  his  services  to 
his  country  as  in  the  similar  case  of  his  friend  Robert 
Morris.  Wilson  was  cordially  disliked  by  that  very 
considerable  element  of  Pennsylvanians  who  opposed 
tlie  adoption  of  the  Constitution  on  the  ground  that 
it  deprived  the  State  of  its  sovereign  rights  and  the 
people  of  their  guarantees  of  liberty  and  safety. 
These  men  ridiculed  the  Federalists  for  their  hos- 
tility to  democracy  and  their  distrust  of  the  people, 
but  in  reality  they  preferred  to  be  first  in  Pennsyl- 
vania than  second  in  the  Union.  Tliey  dreaded  the 
strong  hand  of  law  and  order  and  saw  in  its  estab- 
lishment a  lessening  of  the  license  they  called 
liberty. 

James  Wilson  was  born  near  St.  Andrews,  Scot- 
land, in  1742.^  After  several  years  at  the  Univer- 
sities of  Glasgow,  Edinburgh,  and  St.  Andrews,  he 
came  to  America  in  1765  and  settled  in  Philadelpliia ; 
for  two  years  he  studied  law  under  John  Diclvinson, 
and  in  1768  at  the  age  of  twenty-six  was  admitted 
to  the  bar.  He  began  the  practice  of  law  at  Carlisle, 
but  the  growth  of  his  interests  led  him  in  a  few 
years  to  settle  in  Philadelphia.  The  natural  inclina- 
tion of  his  mind  was  congenial  to  tlie  cliaracter  of 
political  topics  then  under  discussion  and  it  is  not 

'  For  the  facts  of  Wilson's  life  see  Konkle,  op.  cit.,  and  Bi- 
ography of  the  Signers  of  the  Declaration  of  Independence,  ed. 
by  Sanderson,  iii.,  pp.  259-301.  Where  there  is  a  divergence  of 
view  respecting  dates  I  have  followed  Konkle. 


James  Wilson  59 

surprising  to  find  him  entering  at  once  into  the 
public  discussion  being  carried  on.  In  1775  lie  was 
chosen  a  member  of  the  Second  Continental  Congress 
and  in  the  following  year  was  one  of  that  immortal 
number  of  signers  of  the  Declaration  of  Independence. 
Prom  this  time  forth  he  was  engaged  almost  con- 
stantly in  the  public  service.  From  1775  to  1777, 
from  1782  to  1783,  and  from  1785  to  1787,  he  was 
a  member  of  the  Continental  Congress.  His  serv- 
ices in  that  body  are  coincident  with  the  three  great 
periods  in  its  history :  the  first  is  that  of  the  Declara- 
tion of  Independence  and  the  proposal  of  the  Articles 
of  Confederation;  the  second  is  that  of  the  final 
adoption  of  the  Articles  after  the  wise  and  statesman- 
like efforts  of  Maryland  had  resulted  in  securing 
the  cession  by  the  various  States  of  their  Western 
lands  and  the  creation  of  a  lasting  tie  and  common 
interests;  the  third  and  final  period  is  that  of  the 
summoning  of  the  Constitutional  Convention  and  the 
acceptance  of  its  work. 

In  the  Constitutional  Convention  Wilson  labored 
indefatigably  to  fashion  the  instrument  in  symmetry 
and  power,  and  in  the  Pennsylvania  State  Convention 
he  strove  no  less  zealously  to  secure  its  adoption. 
In  1789  Washington  appointed  him  an  Associate 
Justice  of  the  Supreme  Court,  a  position  which  he 
continued  to  fill  with  distinction  till  his  early 
death  while  on  circuit  at  Edenton,  North  Carolina, 
in  1798. 

The  field  of  Wilson's  activity  is  left  incomplete 
without  some  notice  of  the  fact  that  from  1790  to 
1792  he  was  professor  of  law  in  the  College  of 
Philadelphia,   now   tlie   University   of   Pennsylvania. 


6o  Story  of  the  Constitution 

In  his  law  lectures  we  find  a  systematic  presentation 
of  his  views  on  the  nature  of  the  Federal  Govern- 
ment, for  they  were  concerned  far  more  with  the 
philosophy  of  law,  the  nature  of  the  state,  and  the 
character  of  the  Federal  Government  than  with  any 
particular  branch  of  private  law.^  That  Wilson  was 
a  thinker  of  originality  is  evident  from  his  boldness 
in  rejecting  the  time-honored  definition  of  law  as  con- 
secrated by  the  name  of  Blackstone.  He  rejects  the 
conception  of  law  as  a  rule  of  action  laid  down  by 
a  superior,  and  regards  it  as  receiving  its  binding 
force  from  "  the  consent  of  those  whose  obedience 
the  law  requires.  "  ^ 

In  the  Convention,  "  none  with  the  exception  of 
Gouverneur  Morris,"  says  McMaster,  "  was  so  often 
on  his  feet  during  the  debates  or  spoke  more  to  the 
purpose.  "  ^  From  the  record  of  these  speeches  we 
can  gather  a  fairly  accurate  conception  of  Wilson's 
services  in  the  making  of  the  Constitution  and  of 
his  ideas  respecting  the  kind  of  government  he  de- 
sired to  see  established.  It  would  be  absurd  to 
imagine  that  all  the  members  of  the  Convention  had 
an  appreciation  of  the  great  changes  that  were  be- 
ing made,  or  that  they  would  have  approved  if  they 
had  known,  nor  is  it  to  be  supposed  that  any  of 
them  foresaw  the  full  force  of  what  they  did.  They 
were  neither  seers  nor  prophets,  but  practical  men 
for  the  most  part,  intent  on  making  a  new  appli- 
cation of  their  political  wisdom  and  experience  to 
the  new  conditions  that  had  arisen.     They  were  not 

1  Works,  ed.  by  J.  DeW.  Andrews,  2  vols,,  Chicago,  1896. 

-Ibid.,  i.,  88. 

3  History  of  the  People  of  the  United  States,  i.,  421. 


James  Wilson  6i 

(loctrinaii'os  with  a  theory  of  government  to  put 
into  execution,  but  earnest  seekers  for  some  remedy 
for  the  anarchical  condition  into  which  the  po- 
litical relations  of  the  States  had  fallen,  for  some 
sort  of  governmental  arrangement  that  would  re- 
place the  anarchy  that  was  imminent.  If  here 
and  there  among  the  members  there  was  to  be 
found  a  man  whose  gaze  penetrated  even  a  short 
way  into  the  future,  who  saw  with  some  clearness 
the  form  and  nature  of  the  new  Union,  he  is  a 
distinct  exception.  That  there  were  such  men 
cannot  be  denied,  and  foremost  among  them  stands 
AYilson. 

First  of  all  it  should  be  noted  that  Wilson,  far 
from  being  an  "  aristocrat  "  as  his  enemies  charged, 
was  a  firm  believer  in  democracy.  "  He  w^as  for 
raising  the  Federal  pyramid  to  a  considerable  alti- 
tude," he  declared,  yet  "  for  that  reason  wished  to 
give  it  as  broad  a  basis  as  possible.  No  government 
could  long  subsist  without  the  confidence  of  the 
people."  *  As  an  indication  of  his  trust  in  the  peo- 
ple there  may  be  cited  his  zealous  advocacy  of  the 
election  by  the  people  of  the  Executive "  and  the 
members  of  both  branches  of  the  legislative  body.^ 
"  He  wished  for  vigor  in  the  government,  but  he 
wished  that  vigorous  authority  to  flow  immediately 
from  the  legitimate  source  of  all  authority,"  and 
again,  "  the  legislature  ought  to  be  the  most  exact 
transcript  of  the  whole  society.  Representation  is 
made  necessary  only  because  it  is  impossible  for  the 

1  Documentary  History  of  the  Constitution,  iii.,  28. 

-Ibid.,  iii.,  39-49. 

'  Ibid.,  iii.,  31  and  40. 


62  Story  of  the  Constitution 

people  to  act  collectively."  ^  Speaking  again  on  the 
subject  of  representation,  Madison  reports  him  as 
saying,  "  if  we  are  to  establish  a  national  govern- 
ment, that  government  ought  to  flow  from  the  peo- 
ple at  large."  -  Finally  there  could  be  no  clearer 
confession  of  his  allegiance  to  the  principle  of  de- 
mocracy than  we  find  in  the  course  of  the  discus- 
sion of  the  equal  representation  of  the  States  in  the 
Senate — a  proposal  which  Wilson  vigorously  opposed 
' — ^when  he  declared  that  "  the  majority  of  the  people 
wherever  found  ought  in  all  questions  to  govern  the 
minority."  ^  "  He  was  a  believer  in  democracy  and 
in  nationalism — the  first  man,"  it  has  been  said,  "  in 
all  our  history  who  united  the  two  opinions." 

The  debates  on  the  rule  of  suffrage  in  the  national 
legislature  were  numerous  and  protracted,  for  in  this 
question  was  contained  the  struggle  between  tlie 
large  and  the  small  States.  It  was  in  the  course  of  the 
discussion  of  this  part  of  the  Randolph  or  "  Virginia 
plan,"  on  June  9th,  in  the  Committee  of  the  Whole, 
that  Brearly  of  New  Jersey  proposed  "  that  a  map 
of  the  United  States  be  spread  out,  that  all  the  ex- 
isting boundaries  be  erased,  and  that  a  new  partition 
of  the  whole  be  made  into  thirteen  equal  parts."  * 
Paterson  of  New  Jersey  followed  in  a  lengthy  speech 
on  the  powers  of  the  Convention  under  the  resolution 
of  Congress;  on  the  idea  of  a  national  as  distinguished 
from  a  federal  government,  or  a  confederacy,  which  pre- 
supposed sovereignty  in  its  members.    Wilson  replied : 

1  Documentary  History  of  the  Constitution,  iii.,  70. 
^Ihid.,  iii.,  81. 
-  Ihid.,  iii.,  330. 
*  lUd.,  iii.,  96. 


James  Wilson  63 

We  have  been  lold  that  each  State  being  sovereign, 
all  are  equal.  So  each  man  is  naturally  a  sovereign  over 
himself,  and  all  men  are  therefore  naturally  equal.  Tan 
he  retain  this  equality  when  he  becomes  a  member  of 
civil  government?  He  can  not.  As  little  can  a  sov- 
ereign State,  when  it  becomes  a  member  of  a  federal 
government.  If  New  Jersey  will  not  part  with  her 
sovereignty  it  is  vain  to  talk  of  government.  A  new 
partition  of  the  States  is  desirable,  but  evidently  and 
totally  impracticable.! 

The  Committee  of  the  Whole  reported  Randolph's 
plan  as  amended  on  June  13th,  and  the  next  day 
Paterson  asked  time  to  present  a  "  purely  federal " 
plan  and  "  contradistinguished  from  the  reported 
plan."  On  the  15th  Paterson  submitted  the  so-called 
"  New  Jersey  plan,"  and  Randolph's  plan  was  re- 
committed that  there  might  be  a  full  and  free  dis- 
cussion of  both.  On  the  following  day  the  tw^o  plans 
were  discussed  at  length  by  Lansing  of  New  York 
and  by  Paterson  himself,  both  of  w^hom  stated  very 
clearly  the  difference  in  the  character  of  the  plans 
submitted ;  both  advocated  the  New  Jersey  plan, 
which  did  not  contemplate  any  change  in  the  nature 
of  the  new  Union  from  that  under  the  Articles  of 
Confederation.  Wilson  likewise  contrasted  the  two 
plans,  point  by  point,  but  always  in  favor  of  the 
Virginia  plan,  which  contemplated  the  establishment 
of  a  national  government,  consisting  of  a  supreme 
Legislative,  Executive,  and  Judiciary.-  On  June 
19th  the  Committee  of  the  Whole  rejected  Paterson 's 
plan  and  reported  Randolph's  plan  unchanged,  upon 

1  Documentary  History  of  the  Constitution,  iii.,  100. 
2/6(c/.,  iii.,  132  ff. 


64  Story  of  the  Constitution 

which  "  Mr.  WiLson  observed  that  by  a  national  gov- 
ernment he  did  not  mean  one  that  would  swallow 
up  the  State  governments,  as  seemed  to  be  wished 
by  some  gentlemen.  He  was  tenacious  of  the  idea 
of  preserving  the  latter.  He  thought,  contrary  to 
the  opinion  of  (Colonel  Hamilton)  that  they  might 
not  only  subsist  but  subsist  on  friendly  terms  with  the 
former.  They  were  absolutely  necessary  for  certain 
purposes  which  the  former  could  not  reach."  ^  The 
danger  was  rather  that  the  national  government 
would  be  devoured  by  the  State  governments,  though 
"  he  saw  no  incompatibility  between  the  national 
and  State  governments  provided  the  latter  were  re- 
strained to  certain  local  purposes;  nor  any  proba- 
bility of  their  being  devoured  by  the  former."  - 

But  it  was  the  clearness  with  which  Wilson  per- 
ceived the  true  nature  of  the  Federal  State  to  which 
I  wish  to  call  special  attention.  His  views  on  this 
subject  are  best  seen  in  his  discussion  of  the  ques- 
tion whether  the  members  of  the  second  branch  of 
the  legislative  body  should  be  chosen  by  the  Legis- 
latures of  the  States. 

He  was  opposed  to  an  election  by  the  State  legislatures. 
In  explaining  his  reasons  it  was  necessary  to  observe  the 
twofold  relation  in  which  the  people  would  stand:  1,  as 
citizens  of  the  general  government;  2,  as  citizens  of  their 
particular  State.  The  general  government  was  meant  for 
them  in  the  first  capacity;  the  State  governments  in  the 
second.  Both  governments  were  derived  from  the  peo- 
ple— both  meant  for  the  people — both  therefore  ought  to 

1  Documentary  History  of  the  Constitution,  iii.,  162-163. 
2/6id.,  iii.,  76. 


James  Wilson  65 

be  regulated  on  the  same  principles.  .  .  .  With  respect 
to  the  province  and  objects  of  the  general  government 
they  [the  State  governments]  should  be  considered  as 
having  no  existence.  The  election  of  the  second  branch 
by  the  Legislatures,  will  introduce  and  cherish  local  in- 
terests and  local  prejudices.  The  general  government  is 
not  an  assemblage  of  States,  but  of  individuals  for  cer- 
tain political  purposes — it  is  not  meant  for  the  States, 
but  for  the  individuals  composing  them;  the  individuals, 
therefore,  not  the  States,  ought  to  be  represented  in  it.^ 

Again  in  the  debate  on  this  same  question  he  asks, 
"  Can  we  forget  for  whom  we  are  forming  a  govern- 
ment? Is  it  for  men,  or  for  the  imaginary  beings 
called  States?''- 

As  in  this  question  of  representation,  so  through- 
out the  course  of  the  debates  Wilson  stood  for  the 
creation  of  a  strong  national  power  to  which  the 
States  should  be  subordinate,  though  independent 
within  their  own  spheres.  That  this  is  the  result 
W^ilson  believed  had  been  accomplished  by  the  Con- 
stitution is  conclusively  shown  in  his  lectures  on  law 
at  the  College  of  Philadelphia  in  the  winter  of 
1791-92  and  in  his  decisions  after  his  appointment 
to  the  Supreme  Court  of  the  United  States. 

W^ilson  was  one  of  the  earliest  professors  of  Ameri- 
can constitutional  law,  and  his  exposition  of  the 
nature  of  the  Federal  Union  was  one  of  the  first 
attempts  to  set  forth  a  systematic  analysis  of  the 
powers  and  relationships  of  the  States  and  the  na- 
tion.    His  lectures  constitute  the  first  authoritative 

1  Documentary  History  of  the  Constitution,  iii.,  208-209. 

2  Ibid.,  ill.,  250. 


66  Story  of  the  Constitution 

discussion  of  the  Constitution  from  any  other  stand- 
point than  that  of  political  advocacy  or  opposition., 
The  Federalist,  to  be  sure,  had  preceded  Wilson's! 
lectures  by  a  couple  of  years,  but  magnificent  as  are 
those  essays,  fundamental  as  they  are  to  our  con- 
stitutional history,  they  must  always  suffer  from 
the  fact  that  they  were  written  with  a  persuasive 
purpose;  their  object  was  to  secure  the  adoption  of 
the  Constitution  by  the  people  of  New  York.  Their 
purpose  marred  their  symmetry  and  completeness. 
Wilson,  on  the  other  hand,  wrote  after  the  Consti- 
tution had  been  adopted  and  put  into  operation  for 
more  than  a  year.  There  was  no  need  for  advocacy 
or  apology  but  only  for  a  calm  and  unprejudiced  ex- 
position; and  one  who  reads  these  lectures  must  of 
necessity  be  impressed  with  a  sense  of  the  importance 
attaching  to  their  delivery  in  the  mind  both  of  the 
lecturer  and  of  his  audience. 

Philadelphia  was  at  this  time  the  chief  city  of  the 
country  in  wealth  and  culture,  and  the  seat  of  the 
new  national  government  had  just  been  transferred 
to  it  from  New  York.  The  brilliant  society  which 
centred  in  the  city  has  been  styled  "  The  American 
Court."  The  opening  lecture  was  of  sufficient  in- 
terest and  importance  to  attract  the  presence  of 
Washington  and  a  distinguished  company  of  ladies 
and  gentlemen  from  this  "  court." 

Wilson  was  a  political  philosopher  as  well  as  a 
jurist,  and  in  his  thought  concerning  the  nature  and 
origin  of  civil  society  he  had  arrived  at  conclusions 
differing  radically  from  the  accepted  views  of  the 
times.  Society,  to  be  sure,  he  regarded  as  based  upon 
compact  or  the  consent  of  the  individuals,  but  so- 


James  Wilson  67 

ciety  is  not,  therefore,  artificial  ^ ;  it  is  natural  and 
necessary;  the  state  of  nature  is  not  a  state  of  war 
of  all  against  all  since  in  it  men  are  ruled  by  good 
and  not  by  evil  desires,  yet  without  society  man  can 
not  accomplish  for  himself  or  for  others  the  things 
desired.  Wilson  is,  therefore,  in  accord  with  the 
Aristotelian  conception  of  man  as  a  social  and  politi- 
cal animal.  The  social  contract  unites  men  into  a  body 
politic  or  corporation  ^  which  he  regarded  as  a  moral 
person."'  In  the  state  of  nature  all  men  are  free 
and  equal  in  rights  and  obligations  *  and  this  free- 
dom and  equality  are  not  lost  in  civil  society. 
Natural  liberty  is  not  abridged  but  increased  by  the 
establishment  of  society,  for  a  man  "  will  gain  more 
by  the  limitation  of  other  men's  freedom,  than  he  can 
lose  by  the  diminution  of  his  own."  ^ 

The  powers  of  individuals,  enjoyed  before  the 
contract,  remain  as  an  aggregate  in  society.^  The 
supreme  or  sovereign  power  of  the  society,  there- 
fore, resides  in  the  citizens  at  large.  In  this  moral 
person,  this  corporation,  thus  created  by  contract, 
the  voice  of  the  majority  must  pass  for  the  voice 
of  the  whole,  for  the  minority  is  bound  by  its  con- 
sent originally  given  to  the  establishment  of  society.'' 
There  is  thus  laid  the  broad  foundation  for  that  de- 
mocracy we  have  already  noted  as  an  integral  part 
of  his  political  views. 

1  Cf.  Works,  i.,  253  ff. 

2  Ibid.,  i.,  271-272. 
^Ibid.,  i.,  304-305. 
"  Ibid.,  l,  275. 

5  Ibid.,  ii.,  300. 
«/6trf.,  i.,  169. 
T  Ibid.,  l,  227. 


68  Story  of  the  Constitution 

Wilson  carefully  di.stiugiiished  between  society  or 
the  state,  and  government;  society  preceded  govern- 
ment which  is  merely  the  agent  of  society  for  the 
performance  of  certain  functions  which  society  is 
unable  to  perform  for  itself.^  Now  this  moral  per- 
son, which  is  society  or  the  state,  may  constitute 
its  government  in  any  fashion  it  chooses,  and  with 
us  it  has  chosen  a  written  constitution  as  the  in- 
strumentality; this  constitution  it  may  change  when- 
ever it  chooses.- 

Furthermore  in  all  states  there  must  be  a  power 
from  which  there  is  no  appeal,  a  power  absolute,  su- 
preme, and  uncontrollable.  Where  is  this  power 
lodged?  Certainly  not  in  constitutions,  for  we  have 
just  seen  that  they  may  be  changed  at  will  by  the 
people.  This  supreme  power,  sovereignty,  resides  in 
the  people,  in  the  citizens  at  large,  and  is  paramount 
to  all  constitutions.  Moreover  it  is  inalienable  in 
its  nature  and  indefinite  in  extent,  being  the  powers 
of  the  individuals  which,  after  the  contract,  remain 
as  an  aggregate  in  society,  and  "  all  the  other 
pow'ers  and  rights,  which  result  from  the  social 
union." 

"  All  these  powers  and  rights,  indeed,  cannot,  in 
a  numerous  and  extended  society,  be  exercised  per- 
sonally; but  they  may  be  exercised  by  representa- 
tion." The  delegation  of  sovereign  powers,  however, 
is  not  alienation  and  carries  with  it  always  the 
powder  and  right  of  resumption.  There  can,  more- 
ov^er,  be  no  subordinate  sovereignty;  the  people  have 
not  parted  with  it;  they  have  only  dispensed  such 

iC/.  Works,  {.,  343. 

2  Ibid.,  i.,  14-15  and  375. 


James  Wilson  69 

portions  of  power  as  were  conceived  necessary  for 
the  public  welfare. '^ 

The  application  that  Wilson  made  of  these  prin- 
ciples to  the  Federal  Union  leaves  little  to  be  desired 
in  completing  his  conception  of  its  nature.  The 
Federal  Union  he  regarded  as  a  P^'ederal  Republic, 
the  vital  principle  of  which  he  sees  set  forth  in 
Montesquieu's  definition  as  a  form  of  government 
"  by  which  several  states  consent  to  become  citizens 
of  a  larger  state,  which  they  wish  to  form.  It  is 
a  society  formed  by  other  societies,  which  make  a 
new  one."  - 

This  Federal  Republic  is  not  a  consolidated  gov- 
ernment if  thereby  the  destruction  of  the  States  is 
meant — nor  a  confederacy,  a  mere  alliance  of  sov- 
ereign States,  but  a  union  of  States  so  that  the 
individual  State  governments  are  retained  and  a 
general  government  is  established.  "  Its  own  exist- 
ence, as  a  government  of  this  description,  depends 
on  theirs."'  ^  "  The  people  of  the  United  States  must 
be  considered  attentively  in  two  very  different  views 
— as  forming  one  nation,  great  and  united;  and  as 
forming,  at  the  same  time,  a  number  of  separate 
States,  to  that  nation  subordinate,  but  independent 
as  to  their  own  interior  government."  ^ 

That  the  whole  people  of  the  United  States  was 
conceived  of  by  Wilson  as  forming  "  one  nation, 
great  and  united,"  is  nowhere  more  clearly  shown 
than  in  his  discussion  of  the  purely  democratic  prin- 

1  Cf.  Works,  i.,  169. 
2/6id.,  i.,  312. 
^Ibid.,  ii.,  17. 
*  Ibid.,  ii.,  7. 


70  Story  of  the  Constitution 

ciples  at  the  basis  of  the  Federal  Constitution.  The 
source  of  all  power  he  saw  in  tlie  people,  a  source 
totally  unknown  under  the  Articles  of  Confederation. 
The  preamble  to  the  Constitution,  "  We,  the  people 
of  the  United  States,  do  ordain  and  establish  this 
Constitution,"  was  to  Wilson  a  practical  declaration 
of  that  principle;  we  can  easily  imagine  we  are  listen- 
ing to  Webster  when  he  declares  that  this  preamble 
was  not  for  show  but  meant  what  it  said;  that  the 
Constitution  is  not  a  compact  but  an  ordinance  and 
establishment  of  the  people.  "  He  could  not  answer 
for  what  every  member  thought,  but  believed  it  could 
not  be  said  they  believed  they  were  making  a  com- 
pact; he  could  discover  no  trace  of  compact  in  the 
system.  Compact  requires  more  parties  than  one. 
The  Constitution  was  not  founded  upon  compact  but 
upon  the  power  of  the  people." 

The  general  principle  upon  which  a  dividing  line 
was  to  be  drawn  between  the  State  and  the  national 
government  was  clear,  though  the  practical  appli- 
cation presented  difficulties.  Whatever  in  its  nature 
and  operation  extended  beyond  the  individual  State 
ought  to  be  comprehended  within  the  Federal  juris- 
diction. The  people  of  the  United  States  formed  one 
great  community,  the  people  of  the  different  States 
formed  communities  on  a  lesser  scale.  Hence  Wil- 
son believed  that  different  proportions  of  legislative 
powers  should  be  given  to  the  governments  accord- 
ing to  the  nature,  number,  and  magnitude  of  their 
objects.  But  the  "  truth  is,  that,  in  our  govern- 
ments, the  supreme,  absolute,  and  uncontrollable 
power  remains  in  the  people."  ^ 

1  Works,  I,  543. 


James  Wilson  71 

T]io  fnrtlior  dovelopnient  of  tliese  ideas  was  carried 
on  by  Wilson  in  his  service  upon  the  bench  of  the 
Supreme  Court  during  a  period  just  short  of  ten 
years  in  length.  These  were,  moreover,  the  first 
years  of  the  Court's  history — years  of  doubt  and  un- 
certainty regarding  the  rights  and  powers  of  the 
Court,  of  struggle  to  establish  the  Court  on  a  plane  of 
equality  with  the  Legislative  and  Executive  branches 
of  the  government, — but  Wilson  never  faltered  in  his 
application  of  his  theories  to  the  actual  conditions 
of  government  as  they  arose.  Had  he  lived  a  few 
years  longer  he  would  without  doubt  have  ranged 
himself  on  the  side  of  Marshall  in  the  famous  case 
of  Marbury  v.  Madison,  for  in  his  discussion  of  the 
relation  of  the  various  departments  of  the  govern- 
ment, that  portion  of  his  lectures  dealing  with  the 
power  of  the  court  to  declare  a  law  unconstitutional 
is  so  strikingly  like  the  decision  that  we  are  con- 
strained to  believe  that  Marshall  had  read  and  was 
familiar  with  Wilson's  argument.^ 

Not  alone  in  the  power  of  the  court  to  declare  a 
law  unconstitutional  does  Wilson  anticipate  Mar- 
shall. His  "  argument  upon  the  Bank  of  North 
America  stands  as  a  constitutional  exposition  second 
to  no  constitutional  argument  or  opinion  delivered 
before  or  since.  Indeed,  it  not  only  embraces  every 
ground  of  argument  which  Marshall  was  called  upon 
to  tread,  but  it  assumed  and  defended  precisely  the 
position  which  was  necessarily  taken  in  the  legal- 
tender  decisions."  ^  A  single  sentence  from  this  re- 
markable  argument,   made,   to   be   sure,   before   the 

1  Works,  i.,  416. 

-Ibid.,  i.,  XV.    (Memoir). 


72  Story  of  the  Constitution 

adoption  of  the  present  Constitution,  but  even  more 
applicable  to  it  than  to  the  Articles  of  Confederation, 
will  reveal  the  clear  insight  that  Wilson  possessed 
into  the  ultimate  nature  of  the  central  government 
and  will  astonish  us  by  its  twentieth-century  tone. 
It  is  easy  to  imagine  that  we  are  listening  to  a 
passage  from  the  judgments  in  the  "  insular  cases," 
in  which  the  doctrine  of  inherent  powers  has  found 
a  recent  recognition  and  expression. 

"  Whenever,"  said  Wilson,  "  an  object  occurs,  to 
the  direction  of  which  no  particular  State  is  com- 
petent, the  management  of  it  must,  of  necessity,  be- 
long to  the  United  States  in  Congress  assembled."  ^ 
The  Federal  state,  then,  possesses  inherent  as  well 
as  enumerated  powers.  Where  the  object  involved  is 
beyond  the  power  of  the  States,  and  where  that  power 
is  one  ordinarily  possessed  by  sovereign  nations, 
there  the  United  States  as  a  sovereign  nation  must 
be  supposed  to  enjoy  this  power. 

Finally  it  fell  to  Wilson  to  participate  in  the  de- 
cision of  the  first  great  constitutional  case  to  be 
presented  to  the  Supreme  Court,  the  case  of  Chis- 
holm  V.  Georgia.-  A  citizen  of  another  State  had 
sued  the  State  of  Georgia  in  the  Supreme  Court  and 
the  State  had  refused  to  recognize  the  jurisdiction 
of  the  Court.  Georgia  protested  vigorously  against 
the  indignity  of  being  haled  into  court  like  a  com- 
mon debtor.  Though  the  Constitution  declared  that 
the  jurisdiction  of  the  Supreme  Court  extended  to 
cases  between  a  State  and  the  citizens  of  another 
State,   it  was  contended   that   the  intention   of  the 

1  Works,  i.,  558. 

-  United  States  Supreme  Court  Reports,  2  Dallas,  419. 


James  Wilson  73 

framers  of  the  Constitution  was  to  give  jurisdiction 
in  such  cases  only  when  the  State  voluntarily  sub- 
mitted to  or  invoked  the  Jurisdiction.  The  States, 
it  was  said,  were  sovereign  and  to  compel  a  State  to 
submit  to  the  jurisdiction  of  the  Court  was  to  rob 
it  of  its  sovereignty,  to  reduce  it  to  a  position  of 
inferiority  to  the  Federal  Government. 

At  the  outset  of  his  opinion  Wilson  formulated 
the  question  presented  to  the  Court  in  these  terms : 
"  Do  the  people  of  the  United  States  form  a  nation?  " 
He  then  considers  the  question  from  the  three  stand- 
points of  general  jurisprudence,  the  law  of  na- 
tions, and  the  Constitution  of  the  United  States,  and 
as  a  result  of  each  he  arrives  at  an  affirmative  an- 
swer. Though  the  word  sovereign  may  be  unknown 
to  the  Constitution,  it  was  because  the  people, 
serenely  conscious  of  the  fact  that  they  were  sov- 
ereign, "  avoided  the  ostentatious  declaration."  "  The 
people  of  the  United  States,  among  them  Georgia, 
ordained  and  established  the  present  Constitution." 
"  The  people  of  the  United  States  intended  to  form 
themselves  into  a  nation  for  national  purposes " — 
'^  as  to  the  purposes  of  the  Union,  therefore,  Georgia 
is  not  a  sovereign  State."  As  Judge  Cooley  has 
said: 

Justice  Wilson,  the  ablest  and  most  learned  of  the 
associates,  took  the  national  view,  and  was  supported 
by  two  others.  The  Chief  Justice  was  thus  enabled  to 
declare  the  opinion  of  the  court  that,  under  the  Consti- 
tution of  the  United  States,  sovereignty  belonged  to  the 
people  of  the  United  States.  ...  It  must  logically  fol- 
low that  a  nation  as  a  sovereignty  is  possessed  of  all 
those  powers  of  independent  action  and  self-protection 


74  Story  of  the  Constitution 

which  the  successors  of  Jay  subsequently  demonstrated 
were  by  implication  conferred  upon  it.^ 

Wilson,  like  Hamilton,  was  freed  to  a  great  extent 
by  the  fact  of  his  foreign  birth  from  local  prejudices 
and  State  pride.  America  was  the  country  of  his 
adoption  and  his  patriotism  embraced  the  whole  of 
it;  not  merely  one  of  the  thirteen  States  but  all  to- 
gether claimed  his  allegiance.  From  the  signing  of 
the  Declaration  of  Independence  to  his  untimely 
death  in  1798,  Wilson  was  an  ardent  supporter  of 
the  idea  of  a  national  state.  In  the  Constitutional 
Convention,  in  the  Pennsylvania  State  Convention,  in 
his  lectures,  and  upon  the  bench  he  labored  for  its 
realization.  The  compromises  of  the  Constitution 
left  that  instrument  such  a  compound  of  conflicting 
views  and  opposing  tendencies  that  its  real  nature 
became  apparent  only  as  it  was  put  into  operation. 
First,  the  Executive  and  Legislative  branches,  under 
the  guidance  of  Hamilton,  rushed  forward  toward  the 
goal  of  nationalism  but  with  too  great  haste;  the  in- 
evitable reaction  brought  the  triumph  of  the  forces 
of  decentralization  in  these  departments,  while  the 
Judiciary,  following  the  lead  of  Wilson,  continued 
to  interpret  the  Constitution  in  the  broadest  national 
sense. 

The  kind  of  a  national  union  desired  by  Wilson 
could  not  be  achieved  in  the  face  of  the  opposition 
of  the  individual  States.  He  was  more  national  than 
his  generation.  The  supremacy  of  the  Union  was 
not  finally  settled  till  the  Civil  War.  Since  then  the 
doctrine  of  James   Wilson   has  held   tlie   field;  the 

1  Constitutional  History  as  Seen  hi  American  Law,  pp.  48-49. 


James  Wilson  75 

sovereignty  of  the  nation  and  the  ultimate  powers 
of  the  Federal  state  are  ideas  that  are  daily  being 
used  to  extend  the  sphere  of  Federal  activity,  while 
ex-President  Koosevelt  has  proclaimed  that  he  could 
Jind  no  better  guide  for  his  own  political  actions 
than  the  theories  of  James  Wilson  of  Pennsylvania.^ 

^  Cf.  Alexander,  op.  cit.,  p.  1. 


IV 

Thomas  Jefferson.      Growth  through 
Acquiescence 


77 


THOMAS  JEFFERSON 

1743.  April  13.  Born  at  Shadwell,  Albemarle  Co.,  Va. 

1767.  Admitted  to  bar. 

1769.  Member  of  House  of  Burgesses. 

1775.  Delegate    to    Continental    Congress    at    Phila- 

delphia. 

1776.  June  11.  Committee     to     draft     Declaration     of     Inde- 

pendence. 
Resigned. 

1779.  Elected  Governor. 

1780.  Re-elected. 

1783-84.  Member  of  Continental  Congress. 

1784.  Commissioner  to  France. 

1785-90.  Minister  to  France. 

1790-94.  Secretary  of  State. 

1798.  Wrote  Kentucky  Resolutions. 

1797-1801.  Vice-President. 

1801-09.  President. 

1803.  Louisiana  Purchase. 

1806.  Embargo. 

1819.  Founded  University  of  Virginia. 

1826.    July  4.      Died. 


78 


IV 

Thomas  Jefferson.     Growth  through 
Acquiescence 

NONE  of  the  statesmen  of  the  Revolutionary 
period  has  exerted  a  greater  influence  upon 
the  succeeding  generations  of  his  countrymen  than 
Jefferson,  but  his  influence  has  differed  from  that 
of  all  the  rest  for  it  has  been  upon  the  spirit  of  the 
people  and  their  attitude  toward  their  institutions 
rather  than  upon  the  formation  of  the  institutions 
themselves.  As  the  embodiment  of  the  spirit  of 
democracy,  his  name  is  still  a  potent  rallying  cry 
for  a  multitude  of  men.  It  is  illustrative  of  the 
peculiar  character  of  his  influence  that  men  claim 
him  as  their  political  guide  whose  views  bear  little 
or  no  resemblance  to  his. 

Jefferson's  cardinal  political  principles  were  trust 
in  the  people  and  an  antipathy  to  government — 
principles  in  themselves  contradictory.  Modern  de- 
mocracy has  been  more  logical,  for  its  trust  in  the 
capacity  and  soundness  of  the  masses  has  led  it  to 
claim  for  them  an  ever  increasing  control  over,  and 
a  constant  enlargement  of,  the  sphere  of  governmental 
activities.     Jefferson's  fear  of  the   tyranny  of  gov- 

79 


8o  Story  of  the  Constitution 

ernment  has  been  converted  into  a  demand  that 
government  by  the  people  should  be  government  for 
the  people;  his  anxiety  lest  it  should  prove  an  in- 
strument to  deprive  them  of  their  liberty  has  been 
replaced  by  the  determination  to  make  it  serve  their 
interests.  As  a  result  we  see  two  processes  of  politi- 
cal development  going  hand  in  hand;  the  one  look- 
ing to  a  steady  enlargement  of  the  direct  participation 
of  the  people  in  the  constitution  of  governmental 
agencies,  and  the  other  stretching  out  eagerly  for 
new  ways  in  which  the  government  may  serve  the 
general  interest.  There  is  no  longer  the  dread  that 
government  may  prove  an  engine  for  the  destruction 
of  popular  liberties,  and  herein  democracy  shows  itself 
more  consistent  than  did  Jefferson. 
f  Hamilton,  Wilson,  and  Jefferson  present  an  in- 
teresting contrast  in  their  ideas  of  government  and 
their  attitude  toward  the  particifjation  of  the  people 
in  it.  Hamilton  believed  in  a  strong  government  in 
the  hands  of  the  few,  because  he  had  no  faith  in 
the  great  mass  of  mankind  ^ ;  Wilson  believed  in  a 
strong  government  because  he  had  this  faith  and, 
while  agreeing  with  Hamilton  in  the  value  and 
efficacy  of  government  as  an  agent  in  the  progress 
of  civilization,  insisted  that  the  foundation  of  all 
government  should  rest  upon  the  broad  basis  of 
popular  consent;  thus  established  it  should  be  in- 
vested with  a  considerable  degree  of  authority  tliat 

1  Hamilton  recognized,  however,  that  in  a  republic,  at  least, 
all  power  must  come  from  the  people.  "  The  fabric  of  Ameri- 
can empire  ought  to  rest  on  the  solid  basis  of  the  consent  of 
the  people.  The  streams  of  national  power  ought  to  flow  im- 
mediately from  that  pure,  original  fountain  of  all  legitimate 
authority." — Federalist,  No.  22. 


Thomas  Jefferson  8i 

order  and  security  might  result.*  Jefferson  desired 
as  little  of  government  as  might  be,  since  to  him  all 
government  was  a  limitation  upon  the  freedom  of 
the  individuals  under  it  2;  since  he  distrusted  gov- 
ernment as  a  means  of  progress,  the  essence  of  his 
belief  was  laissez  faire. 

Jefferson  was  a  well-to-do  country  gentleman  of 
Virginia,  of  a  family  long  established  in  the  State 
but  not  numbered  among  the  aristocratic  inner  cir- 
cle.'^ Born  in  1743,  he  was  graduated  from  William 
and  Mary  College  in  1762,  studied  law  under  the 
great  master,  George  Wythe,  and  was  elected  a  mem- 
ber of  the  House  of  Burgesses  in  1769.  The  temper 
of  the  colonists  toward  the  Crown  showed  itself  im- 
mediately upon  the  assembling  of  the  Burgesses  to 
which  Jefferson  had  been  elected;  within  three  days 
the  Governor  dissolved  them  for  passing  a  set  of 
resolutions  "odiously  like  a  Bill  of  Rights,"  and 
eighty-eight  of  the  delegates,  among  them  Jefferson, 
met  the  next  day  in  the  long  room  of  the  Raleigh 
tavern  and  framed  a  non-importation  agreement 
against  Great  Britain. 

At  the  next  meeting  of  the   Burgesses   in   1773, 

^  Documentary  History  of  the  Constitution,  iii.,  28.  "  He  was 
for  raising  the  federal  pyramid  to  a  considerable  altitude,  and 
for  that  reason  wished  to  give  it  as  broad  a  basis  as  possible. 
No  government  could  long  subsist  without  the  confidence  of  the 
people." 

2  "  I  am  convinced  that  those  societies  (as  the  Indians)  which 
live  without  government  enjoy  in  their  general  mass  an  in- 
finitely greater  degree  of  happiness  than  those  who  live  under 
European  governments."  Quoted  in  Morse,  Thomas  Jefferson, 
p.  83. 

3  The  more  important  biographies  of  Jeffei'son  have  been  writ- 
ten by  Morse,  Parton,  Randall,  Schouler,  and  Tucker. 


82  Story  of  the  Constitution 

Jefferson  with  some  half  a  dozen  bold  spirits  met 
privately  and  determined  to  establish  a  committee  of 
correspondence  to  facilitate  the  intercliange  of  news 
among  the  colonies.  The  result  was  that  the  Bur- 
gesses were  again  dissolved,  but  nevertheless  the 
committee  met  on  the  following  day  and  issued  an 
invitation  to  the  other  colonies  to  appoint  similar 
committees.  Again  the  following  year  Jefferson  was 
a  leader  in  the  House  of  Burgesses  which  proclaimed 
a  day  of  prayer  and  fasting  in  behalf  of  Massa- 
chusetts, then  suffering  on  account  of  the  Boston 
Port  Bill;  again  the  Governor  dissolved  them;  again 
they  met  in  the  tavern  and  passed  disloyal  resolu- 
tions, among  them  a  resolution  suggesting  an  annual 
general  congress  of  all  tlie  colonies,  and  another  call- 
ing for  a  Virginia  convention  to  meet  on  the  first 
of  the  following  August.  Jefferson,  though  elected 
a  representative  from  Albemarle,  was  prevented  by 
illness  from  attending  tlie  State  convention.  The 
draft  of  instructions  he  hoped  would  be  given  by 
the  convention  to  the  delegates  elected  by  it  to  the 
general  conference  proved  too  radical.  They  were, 
however,  printed  in  pamphlet  form  under  the  title 
of  A  Summary  Vieio  of  the  Rif/hts  of  British  America, 
and  received  wide  circulation  both  in  England  and 
America. 

Soon  afterward  Jefferson  was  appointed  a  dele- 
gate to  the  Second  Continental  Congress,  in  which 
he  took  his  seat  on  June  21,  1775,  having  delayed 
in  Virginia  long  enough  to  draw  up  a  reply  to  the 
"  olive-branch  "  of  Lord  Nortli.  In  the  Congress  his 
talents,  those  of  a  writer,  not  a  speaker,  won  recog- 
nition,  and   his   draft   was    the   reply  accepted   and 


Thomas  Jefferson  83 

promulgated  by  Congress  to  Lord  North's  "  concilia- 
tory proposition."  Jefferson  nn(]nestionably  thought 
that  separation  from  the  niotlier  eountry  was  daily 
approaching,  yet  *'  he  was  too  thoughtful  not  to  be  a 
reluctant  revolutionist,  but  for  the  same  reason  he 
was  sure  to  be  a  determined  one."  ^ 

Events  moved  rapidly  in  the  years  of  1775-6. 
Paine's  (^ommon  ^cusc  had  gone  broadcast  over 
the  country  with  its  bold  plea  for  independence. 
Lexington  and  Concord  had  been  fought,  Washington 
had  been  appointed  commander-in-cliief,  and  Boston 
had  been  besieged,  when  Virginia  instructed  her 
delegates  to  move  that  Congress  sliould  declare  "  The 
United  Colonies  free  and  independent  States."  -  On 
June  11th,  Congress  appointed  a  committee,  of  which 
Jefferson  was  a  member,  to  prepare  a  Declaration 
of  Independence.  The  actual  task  of  drawing  the 
document  was  entrusted  by  tlie  committee  to  Jeffer- 
son. Such  skill  did  he  show  in  formulating  the 
thoughts  in  all  men's  minds,  that,  save  for  a  few 
slight  changes  proposed  by  Franklin  and  Adams  in 
the  committee,  the  Declaration  stands  to-day  as 
Jefferson  composed  it.^  That  it  was  in  no  sense 
new,  Jefferson  himself  fully  recognized.  Its  object 
was  "  not  to  find  out  new  principles,  or  arguments, 
never  before  thought  of,  not  merely  to  say  things 
which  had  never  been  said  before,"  but  "  it  was  in- 
tended to  be  an  expression  of  the  American  mind."  ^ 

1  Morse,  p.  26. 

-  On  June  7th,  Richard  Henry  Lee  of  Virginia  offered  resolu- 
tions in  Congress  declaring  the  colonies  free  and  independent 
States. 

••'  Works,  i.,  26  ff. 

*Ibid.,  xvi.,  118. 


84  Story  of  the  Constitution 

This  declaration,  the  political  creed  of  that  and 
succeeding  generations,  is  too  familiar  to  require  ex- 
tensive notice.^  Human  equality,  the  natural  and 
inalienable  rights  of  life,  liberty,  and  the  pursuit  of 
happiness,  the  protection  of  these  rights  as  the  func- 
tion of  government,  the  consent  of  the  governed  as 
the  foundation  of  all  just  governments,  and  the  ulti- 
mate right  of  revolution  when  government  fails  to 
perform  its  functions,  are  the  fundamental  principles 
embraced  in  it.  They  are  also  the  basic  principles 
of  all  Jefferson's  subsequent  political  thinking. 

Though  re-elected  to  Congress  on  June  20,  1776, 
Jefferson  declined  to  serve,  believing,  as  he  later 
said,  that  he  could  be  of  more  use  in  forwarding  the 
work  of  remodelling  the  social  and  political  fabric 
of  his  native  State,  for  with  the  sundering  of  the 
ties  of  allegiance  to  the  mother  country,  it  became 
necessary  "  to  lay  aside  the  monarchical,  and  take 
up  the  republican,  government,"  which,  in  a  letter 
to  Franklin  in  1777,  he  declared  the  State  of  Virginia 
had  done  "  with  as  much  ease  as  would  have  at- 
tended their  throwing  off  an  old  and  putting  on  a 
new  suit  of  clothes." 

It  w^as  a  period  of  revolution,  of  destruction  and 
re-creation,  and  the  people  were  ripe  for  social  and 
political  changes.  There  was  little  need  of  change 
in  most  of  the  New  England  States;  how  little,  is 
evidenced  by  the  continuation  of  the  old  colonial 
charters  of  Connecticut  and  Rhode  Island  as  their 
State  constitutions  until  well  into  the  nineteenth 
century.  In  Virginia  there  was  need  of  more  radi- 
cal   change    before    the    life    of    the    State    and    its 

1  Cf.  the  Appendix  for  the  text. 


Thomas  Jefferson  85 

political  and  legal  institutious  could  rest  upon  a 
democratic  basis.  Within  her  borders  had  been  de- 
veloped the  nearest  approach  to  an  aristocracy  to 
be  found  anywhere  upon  this  side  of  the  Atlantic. 
Her  great  estates,  descending  by  entail  and  primo- 
geniture and  supported  by  slavery,  had  tended  to 
develop  a  landed  gentry,  an  aristocracy  of  birth  and 
wealth,  which  had  been  also  in  large  measure  a 
political  aristocracy,  for  the  political  power  of  the 
colony  had  been  to  a  great  extent  in  their  hands. 
Jefferson  was  not  by  birth  a  member  of  the  inner 
circle  of  this  class;  he  was,  furthermore,  by  nature 
a  radical  and  a  reformer,  and  he  was  not  slow  to 
take  advantage  of  the  disturbed  political  conditions 
to  put  into  execution  his  democratic  beliefs. 

Elected  a  member  of  the  House  of  Delegates,  he 
began  at  once  the  work  of  reform,  and  just  a  week 
after  he  took  his  seat  on  October  11,  1776,  he  brought 
in  a  bill  abolishing  the  whole  system  of  entail,  and 
almost  without  a  struggle  the  basis  of  the  pseudo- 
aristocracy  was  swept  away.  Primogeniture  soon 
met  with  a  like  fate.  "  At  least,"  implored  Pendle- 
ton, "  if  the  eldest  son  may  no  longer  inherit  all  the 
lands  and  slaves  of  his  father,  let  him  take  a  double 
share."  "  No,"  said  Jefferson,  the  leveller,  "  not  till 
he  can  eat  a  double  allowance  of  food  and  do  a 
double  allow^ance  of  work." 

His  next  attack  was  upon  the  established  church. 
He  desired  complete  religious  freedom,  but  the  most 
he  could  accomplish  was  to  induce  the  legislature, 
the  majority  of  whom  were  churchmen,  to  take  the 
first  steps  in  that  direction.  But  his  efforts  were 
not  in  vain,  for  the  spirit  that  he  typified  grew  in 


86  Story  of  the  Constitution 

strength  till  in  1786  his  original  "  bill  for  establish- 
ing religious  freedom  "  was  passed  with  only  slight 
amendments.  His  elaborate  plan  for  a  school  sys- 
tem met  with  too  decided  an  opposition  from  the  rich 
planters  ever  to  be  wholly  adopted,  but  education 
was  one  of  his  cardinal  principles,  and  to  his  un- 
tiring interest  in  its  promotion,  the  University  of 
Virginia  ever  stands  as  a  noble  witness. 

Jefferson  was  also  appointed  a  member  of  a  com- 
mission to  effect  a  general  revision  of  all  the  laws 
of  Virginia.  A  civil  and  a  criminal  code  were  soon 
drawn  up,  the  latter  noted  for  its  abolition  of  the 
severe  penalties  of  the  previous  law.  Much  of  this 
work  was  too  democratic  to  meet  with  immediate 
approval  and  adoption,  but  the  next  ten  years  saw 
the  realization  of  practically  all  of  his  measures. 
His  proposals  formed  a  sort  of  reservoir  from  which 
succeeding  legislatures  drew. 

Only  in  the  matter  of  slavery  did  Jefferson  meet 
with  entire  defeat.  He  was  always  an  opponent  of 
slavery,  but  the  commission  could  only  report  a 
"  mere  digest  of  the  existing  laws,''  hoping  by  amend- 
ment, when  the  bill  should  be  proposed,  to  secure 
freedom  to  those  born  after  a  certain  day.  He  felt 
that  the  negro  was  by  nature  inferior  to  the  white 
in  mental  capacity,  and  tliat  "  the  two  races,  equally 
free,  cannot  live  in  the  same  government,''  and  that 
the  attempt  could  only  result  in  the  extinction  of 
one  race  or  the  other.  Such  a  view  led  him  to  pre- 
pare a  scheme  of  colonization,  visionary  and  costly 
beyond  the  possibility  of  fulfilment.^ 

^  For  a  detailed  account  of  Jefferson's  services  in  the  House 
of  Burgesses  at  this  time,  see  Morse,  pp.  36-50. 


Thomas  Jefferson  87 

The  reforms,  both  acdial  and  potential,  during  liis 
two  years  of  membership  in  the  Legislature,  must 
always  be  reckoned  among  Jefferson's  most  lasting 
and  brilliant  achievements.  He  did  not  accomplish 
them  alone  and  single-handed.  He  was  the  leader 
around  whom  was  gathered  a  group  of  brilliant  young 
men,  among  them  Madison,  for  so  large  a  part  of  his 
life  Jefferson's  devoted  follower.  Jefferson  caught 
up  the  spirit  of  the  people  and  gave  it  expression 
almost  before  they  became  conscious  of  their  own 
desires.  His  abiding  faith  in  the  multitude,  in  the 
great  mass  of  the  people,  in  the  correctness  of  their 
Judgment  and  the  justness  of  their  cause,  was  the 
secret  of  his  success  as  the  greatest  political  leader 
this  country  has  produced.  But  it  was  a  leadership 
with,  not  against,  a  rising  tide  of  popular  desire. 
One  cannot  well  imagine  Jefferson  standing  alone 
in  the  maintenance  of  convictions  opposed  to  the 
popular  will.^ 

In  1779  Jefferson  was  elected  Governor  of  Virginia 
to  succeed  Patrick  Henry,  and  for  two  years  filled 
the  office  with  little  credit  to  his  reputation.  They 
Avere  years  of  sore  trial  for  the  State,  which  suf- 
fered from  repeated  inroads  and  invasions  by  the 
British.  Jefferson  was  pre-eminently  a  lover  of 
l)eace,  and  as  war-governor  he  found  himself  in  a 
situation  with  which  his  inclinations  and  abilities 
did  not  fit  him  to  cope,  and  at  the  close  of  his 
second  term  he  retired  with  a  heart  filled  with  bitter- 
ness and  resentment  and  with  tlie  express  intention 
of  withdrawing  forever  from  public  life.     For  three 

1  Oliver,  267.  Book  iv.,  chap,  i.,  pp.  251-270,  contains  an  ex- 
tremely clever  analysis  of  Jefferson's  character. 


88  Story  of  the  Constitution 

years  be  devoted  himself  to  his  private  interests.  At 
the  end  of  this  time  he  was  recalled  from  his  retire- 
ment by  an  election  to  Congress  in  1783,  where  be 
had  the  pleasure  of  signing  the  treaty  with  Great 
Britain  which  recognized  the  Independence  he  had 
been  instrumental  in  proclaiming  seven  years  before. 
It  fell  to  bis  lot,  also,  to  hand  over  to  Congress 
Virginia's  deed  to  the  Northwest  Territory  and  to 
prepare  for  it  a  plan  of  government  in  which  slavery 
was  to  be  forever  prohibited  after  the  year  1800. 

In  1781  Jefferson  retired  from  Congress  and  al- 
most immediately  was  appointed  to  aid  Franklin 
and  Adams  in  the  negotiation  of  commercial  treaties, 
and  in  the  following  year  was  made  sole  Minister  to 
France  where  he  remained  until  1790. 

These  years  of  foreign  residence  were  years  of 
tremendous  importance  for  France  and  for  America. 
In  France  they  witnessed  the  brewing  and  break- 
ing of  the  storm  of  revolution  which  was  destined 
to  sweep  away  all  remnants  of  the  old  order  of 
despotism,  to  run  through  the  mad  follies  of  the 
Reign  of  Terror,  to  degenerate  into  brutal  and  un- 
bridled license,  and  to  give  way  finally  to  a  military 
despotism. 

In  America  they  beheld  what  seemed  to  be  a  fruit- 
less effort  to  reap  the  rewards  of  a  revolution  al- 
ready successfully  accomplished;  beheld  a  jealousy 
and  distrust  of  government  that  boded  ill  for  the 
success  of  liberty;  then  saw  a  reaction  set  in  against 
what,  to  sober  minds,  seemed  not  far  removed  from 
anarchy,  and  heard  no  little  talk  of  the  failure  of 
republican  institutions  and  the  need  of  the  strength 
and  order  of  a  monarchv.     Trulv  Liberty  seemed  in 


Thomas  Jefferson  89 

a  perilous  plight!  That  it  was  saved  both  from 
iiioiuurliy  and  disiutegration  was  due  to  the  wise 
counsels  and  patriotic  efforts  of  the  men  of  the  Con- 
vention, who  were  willing  to  sacrifice  personal  pref- 
erences to  the  general  good,  and  who  were  not  afraid 
of  the  spirit  of  compromise. 

No  Frenchman  could  have  been  more  interested 
in  the  success  of  the  Revolution  in  France  than  was 
Jefferson,  and  no  one  had  better  opportunities  of  ob- 
serving its  progress  than  he.  The  French  found  in 
him  a  kindred  spirit,  and  took  him  into  their  coun- 
sels. He  had  been  a  leader  in  the  revolutionary 
movement  in  his  own  country,  and  had  proclaimed 
the  equality  of  mankind  in  the  Declaration  of  Inde- 
pendence. Little  wonder,  then,  that  he  sympathized 
with  the  French  people  in  their  efforts  against  gov- 
ernment, or  that  "  they  recognized  him  as  one  of 
themselves,  a  speculative  thinker  concerning  the 
rights  of  mankind,  a  preacher  of  extreme  doctrines 
of  political  freedom,  a  deviser  of  theories  of  govern- 
ment, a  propounder  of  vague  but  imposing  generaliza- 
tions, a  condemner  of  the  fetters  of  practicability — in 
a  word,  by  the  slang  of  that  day,  a  '  philosopher ' ; 
and  they  liked  him  accordingly."  ^ 

It  did  not  take  such  experiences  to  make  of  Jefferson 
a  radical  in  matters  of  government;  they  only  served 
to  strengthen  and  confirm  opinions  already  existing, 
for  a  radical  he  was  by  nature.  So  it  is  not  to  be 
wondered  at  that  a  man,  who,  almost  while  the  Con- 
vention was  in  session  at  Philadelphia,  could  say 
that  rebellion  "  is  a  medicine  necessary  for  the  sound 
health  of  government,"  and  "  God  forbid  we  should 

1  Morse,  p.  77. 


Qo  Story  of  the  Constitution 

ever  be  twenty  years  without  sucli  a  rebellion  "  (as 
Shays's),^  should,  when  the  Constitution  was  pub- 
lished, have  said  that  there  were  in  it  "  things  which 
stagger  all  my  dispositions  to  subscribe  to  what  such 
an  Assembly  has  proposed."  - 

Cut  off  for  five  years  by  his  mission  to  France 
from  anything  like  close  association  with  America, 
he  knew  it  only  as  it  was  during  the  fervor  of  the 
revolutionary  struggle,  when  mutual  interests  and 
the  common  need  of  defence  held  the  colonists  to- 
gether; he  lacked  personal  experience  of  the  slack- 
ening of  the  bonds  of  union,  of  the  dangers  and 
distress  resulting  to  the  government  of  the  Con- 
federation, of  its  utter  inadequacy  and  failure. 
Missing  the  full  significance  of  the  years  of  the 
"  Critical  Period,"  untouched  by  the  keen  struggle 
within  the  Convention  itself,  with  an  antipathy  to 
all  strong  governments,  his  first  criticisms  of  the 
Constitution  were  indeed  severe,  but  upon  further 
consideration  and  under  the  influence  of  the  argu- 
ments of  men  like  Madison  and  Monroe,  he  came 
to  view  it  as  did  many  others,  as  the  best  that  could 
be  secured  under  the  circumstances  and  as  worthy 
of  adoption  for  the  good  it  brought,  hoping  that  a 
favorable  moment  would  come  for  correcting  what 
was  amiss  in  it.^  In  the  end  his  chief  objections  to 
it  lay  in  the  absence  of  a  Bill  of  Rights  and  in  the 
re-eligibility  of  the  President.  The  first  was  soon 
removed  by  the  adoption  of  the  first  ten  amendments 
whicli    the   advocates   of   the   Constitution    did    not 

1  Works,  vi.,  372. 

2  Ibid.,  vi.,  370. 

3  Ibid.,  vi.,  392. 


Thomas  Jefferson  91 

oppose  so  much  in  theory  as  on  the  ground  that 
they  were  unnecessary,  now  that  a  rei)ublican  form 
of  government  was  to  be  set  up  in  wliich  the  rights 
of  the  people  coukl  only  be  encroached  upon  by  their 
own  representatives.  Jefferson's  zeal  for  such  a 
declaration  would  seem  to  be  but  another  manifesta- 
tion of  that  visionary  element  in  his  nature  which 
delighted  in  vague  generalizations  and  high-sounding 
phrases,  the  futility  of  which  was  never  apparent 
to  him.^ 

The  second  objection  has  been  practically  removed 
by  the  custom,  inaugurated  by  Washington  and  fol- 
lowed by  succeeding  Presidents,  of  limiting  the  hold- 
ing of  the  oflfice  to  two  terms. 

Immediately  upon  his  return  from  France,  Jeffer- 
son was  appointed  by  Washington  the  Secretary  of 
State.  The  new  government  had  been  established 
nearly  a  year  when  he  arrived  in  New  York  on 
March  21,  1790.  Hamilton  had  already  secured  the 
passage  of  the  bills  for  the  assumption  of  the  public 
debt,  both  foreign  and  domestic,  but  his  third  meas- 
ure providing  for  the  assumption  by  the  new  govern- 
ment of  the  debts  contracted  in  the  war  by  the 
individual  States  had  met  with  defeat  by  a  narrow 
margin  in  the  House  of  Representatives.  Then  was 
enacted  that  first  bit  of  "log-rolling"  by  which 
Hamilton  agreed  to  turn  over  enough  Northern  votes 
to  secure  the  location  of  the  national  capital  upon 
the  Potomac  and  Jefferson  enough  Southern  votes 
to  ensure  the  passage  of  the  third  assumption  bill. 
It  was  a  transaction  that  Jefferson  soon  came  bitterly 
to  regret,  and  for  his  part  in  it  could  offer  no  better 

1  Oliver,  op.  cit.,  p.  258. 


92  Story  of  the  Constitution 

excuse  than  to  impugn  his  own  political  wisdom  by 
declaring  lie  had  been  duped  by  Hamilton.  The 
truth  would  seem  to  be  that  Jelferson  did  not  ap- 
preciate at  the  time  the  full  significance  of  Hamil- 
ton's financial  measures  in  strengthening  the  powers 
of  the  Federal  Government.  Such  a  view  seems  all 
the  more  credible  when  we  reflect  that  Jefferson  was 
hopelessly  unable  to  understand  the  financial  policy 
of  Hamilton  and  as  late  as  1818  spoke  of  it  as  a 
"  puzzle." 

The  opposition  between  the  two  men  was  not  slow 
in  developing.  It  could  not  have  been  otherwise. 
They  were  essentially  different  in  every  character- 
istic of  mind  and  taste.  Hamilton,  young,  daring, 
and  impetuous,  ready  of  tongue  and  pen,  matchless 
as  debater  and  controversialist,  an  ardent  advocate 
of  order  and  strength  in  government,  credited  with 
a  strong  taste  for  monarchy  and  an  equally  strong 
distrust  of  republican  institutions  and  the  judgments 
of  the  people;  an  aristocrat  in  temper  and  bearing, 
with  an  aristocrat's  fine  imperiousness  and  hardly 
concealed  contempt  for  the  common  herd:  Jefferson, 
f  middle-aged,  slow,  and  cautious,  a  compound  of 
dreamer  and  political  seer,  skilled  likewise  in  writ- 
hing but  lacking  in  the  art  of  speech,  with  a  natural 
=  bent  toward  peace  and  a  dislike  of  open  combat  so 
strong  that  liis  enemies  called  him  sly;  a  hater  of 
all  governments,  with  an  earnest  desire  to  have  as 
little  of  the  evil  as  possible;  a  radical,  a  revolution- 
ist, an  ultra-democrat,  for  whom  an  abiding  faith  in 
the  masses  served  almost  for  a  religious  creed;  an 
/unrivalled  organizer  and  leader,  knowing  how  to 
guide  and  direct  without  seeming  to  command. 


Thomas  Jefferson  93 

It  was  inevitable  tliat  these  two  should  differ,  al- 
most that  they  should  typify  the  contending  forces 
of  all  our  national  life. 

Hamilton  struck  out  boldly  in  the  direction  in 
which  he  had  foreseen  lay  the  only  hope  of  safety 
for  the  new  government.  While  the  machinery  of 
it  was  new  and  untried,  when  none  could  tell  with 
certainty  whether  the  various  parts,  not  made  alto- 
gether to  anybody's  liking,  would  work  in  harmony 
when  once  the  motive  power  was  applied,  and  while 
many  doubted  if  it  could  be  made  to  go  at  all,  he 
saw  with  a  statesman's  eye  that  money  was  the  uni- 
versal solvent  of  most,  if  not  all,  the  difficulties;  it 
would  serve  as  fuel  for  the  engine  and  lubricant  for 
the  creaking  joints  to  render  workable  the  patch- 
work of  the  Convention.  He  set  out,  therefore,  to 
enlist  men's  interest  until  their  patriotism  could  be 
awakened,  and,  almost  before  it  was  realized,  he  had 
started  the  new  government  along  the  road  to  fame 
and  fortune  by  that  masterly  series  of  financial 
measures  that  culminated  in  the  establishment  of  a 
National  Bank.  Jefferson,  as  we  have  seen,  did  not 
at  first  appreciate  the  full  significance  of  these  suc- 
cessive steps,  but  once  aroused,  his  suspicions  far 
outran  what  the  facts  would  justify;  his  imagina- 
tion saw  countless  dangers  in  this  financial  "  puzzle  " 
which  he  could  not  understand,  and  his  fears  so  far 
got  the  better  of  his  judgment  as  to  lead  him  to  see, 
in  all  that  Hamilton  was  doing,  the  deep-laid  plots 
of  a  "monarchist";  he  professed  to  believe  that 
Hamilton  was  bent  on  subverting  republican  in- 
stitutions by  the  aid  of  a  "  corrupt  squadron  "  in  the 
Legislature,   bound   to   him   by   the   financial   favors 


94  Story  of  the  Constitution 

tliey  had  secured  tbrougli  his  financial  measures.^ 
Genuinely'  alarmed  for  the  safety  of  all  his  ideas 
of  government,  Jefferson  set  to  work  to  hinder  and 
thwart  Hamilton  in  every  way  he  could.  To  stop 
this  mad  career  of  the  government  on  its  road  to 
monarchy  was  his  first  object;  that  accomplished,  it 
would  then  be  time  to  set  about  undoing  what  had 
already  been  done. 

To  accomplish  these  purposes  Jefferson  bent  all 
his  talents  of  organization  and  all  the  resourceful- 
ness of  his  versatile  mind,  but  it  was  a  task  of 
herculean  difficulty  that  confronted  him.  As  an  op- 
ponent, he  had  a  man  of  consummate  ability  and 
courage,  without  a  match  in  an  open  debate  or  a 
written  discussion,  the  head  of  a  party  composed  of 
a  large  part  of  the  wealth  and  culture  of  the  nation 
— a  party  devoted  to  its  leader  and  his  principles, 
a  party  upon  which  it  was  generally  known  that 
Washington  looked  with  sympathy  and  which  enjoyed 
in  consequence  the  prestige  of  his  great  name.  But 
Jefferson  was  not  daunted  by  the  prospect  of  such 
an  overwhelming  opposition;  the  nucleus  of  a  party 
was  ready  to  hand,  composed  of  all  those  elements 
in  any  way  discontented  with  the  course  of  the 
Federalists  or  with  their  leader;  and  these  were  not 
a  few,  for  Hamilton  made  bitter  enemies  as  well  as 
staunch  friends,  and  his  policies  excited  fear  in  other 
minds  than  that  of  Jefferson.  It  was  not  the  work 
of  a  day  or  of  a  year  to  consolidate  these  elements 
and  to  gather  to  them  the  great  mass  of  the  people; 
no  one  knew  this  better  than  Jefferson,  and  no  one 
with  less  confidence  in  the  ultimate  triumph  of  the 

1  Cf.  Morse,  op.  cit.,  p.  100  ff. 


Thomas  Jefferson  95 

masses  of  the  people  would  have  had  the  courage  to 
lend  the  <i,nht.  Though  it  might  be  long  iu  eomiug, 
delTci'soii  f()i'(^sa\v  the  Ijiial  victory  of  mere  numbers 
if  only  they  could  be  brought  to  act  in  harmony,  and 
trust  ing  to  his  own  ability  to  furnish  the  organization 
necessary  to  produce  harmonious  action,  he  could 
patiently  await  the  day  of  victory. 

That  his  triumph  came  so  soon  was  largely  due  to 
the  sudden  shifting  of  ])opular  interest  from  domestic 
to  foreign  affairs.  The  wave  of  popular  enthusiasm 
for  Republican  France  threatened  to  become  tidal  in 
its  force,  and  destructive  of  that  admirable  position 
of  neutrality  so  heartily  desired  by  Washington. 
Jefferson  was  tlioroughly  in  sympathy  with  the  efforts 
of  the  French  people  and  was  not  to  be  discouraged 
by  the  foolhardy  conduct  of  a  Genet  on  this  side,  or 
the  wild  excesses  of  tiie  Reign  of  Terror,  or  the  ^Kisil- 
laijhnitj  of  the  Directory,  on  the  other  side  of  the 
Atlantic,  though  he  was  shrewd  enough  to  abstain 
from  countenancing  them,  tliat  when  the  reaction 
came  as  a  result  of  offended  national  dignity,  he  was 
able  quietly  to  step  aside  only  to  reappear  later  as  all 
the  greater  leader  because  he  had  foreseen  and  even 
predicted  these  very  results. 

It  was  trouble  with  France  which  gave  rise  to  the 
now  famous  Alien  and  Sedition  Acts,  and  the  no 
less  famous  Virginia  and  Kentucky  Resolutions  of 
1798  and  1799.  In  their  desperation  at  the  malignant 
assaults  made  upon  President  John  Adams,  and  the 
almost  unbridled  license  of  the  Republican  press 
in  its  abuse  of  their  principles,  the  Federalists  were 
goaded  into  passing  these  laws,  putting  into  the 
liands  of  the  Chief  Executive  such  great  powers  over 


96  Story  of  the  Constitution 

individual  liberty  and  containing  such  unwarranted 
infringements  of  the  riglit  of  free  speech  that  the 
country  over,  a  loud  and  angry  cry  arose  against 
their  unconstitutionality.  Jefferson  and  the  Demo- 
cratic-Republican party  eagerly  seized  the  oppor- 
tunity to  fasten  the  odium  of  it  upon  the  Federalists. 

This,  however,  was  not  sufficient  for  Jefferson ; 
even  the  bounds  of  "  loose ''  construction  had  been 
exceeded  and  the  integrity  of  the  Constitution  was 
at  stake.  To  bring  this  home  to  the  people  of  the 
individual  States,  to  secure  their  co-operation  in 
putting  a  check  upon  the  unwarranted  exercise  of 
power  by  the  Federal  Government,  and  in  doing  so 
to  give  expression  at  the  same  time  to  his  funda- 
mental notion  that  it  was  merely  a  league  of  States, 
a  "  voluntary  confederation,"  in  which  the  States 
retained  their  sovereign  right  of  ultimate  judgment 
in  all  matters  affecting  their  reserved  rights,  Jeffer- 
son chose  the  medium  of  the  State  Legislatures  of 
Virginia  and  Kentucky.  With  his  own  hand  he 
prepared  the  resolutions  he  wished  presented  to,  and 
adopted  by,  the  Kentucky  Legislature,  while  to  his 
devoted  friend  and  follower,  Madison,  was  deputed 
the  like  task  for  tlie  Legislature  of  Virginia.^ 

Hot-headed  Kentucky,  however,  was  not  yet  ready 
to  go  the  full  length  proposed  by  Jefferson,  and  in 
the  Resolutions  of  1798  contented  itself  with  declar- 
ing that  the  Constitution  was  a  compact  to  whicli 
the  States  were  parties;  that  by  it  they  had  estab- 
lished a  government  of  definite  and  limited  powers, 
reserving  to  themselves  or  to  the  people  all  other 
powers;  that  every  assumption  by  the  general  gov- 

1  Cf.  G.  Hunt,  Life  of  James  Madison,  p.  251. 


Thomas  Jefferson  97 

ernment  of  undelegated  powers  was  null  and  void, 
and  that  each  State  as  a  party  to  the  compact  had 
a  right  "  to  judge  for  itself,  as  well  of  infractions 
as  of  the  mode  and  measure  of  redress."  The  Alien 
and  Sedition  laws  were  emphatically  declared  to  be 
"  altogether  void  and  of  no  force "  and  the  other 
States  were  called  upon  to  join  her  in  securing 
measures  of  redress. 

In  his  original  draft,  Jefferson  had  asserted  that 
"  where  powers  are  assumed  which  have  not  been 
delegated,  a  nullification  of  the  act  is  the  rightful 
remedy ;  that  every  State  has  a  natural  right  in  cases 
not  within  the  compact,  {casus  non  foederis),  to 
nullify  of  their  own  authority  all  assumptions  of 
power  by  others  within  their  limits,"  and  in  a  second 
set  of  Resolutions,  passed  in  the  following  November 
(1799),  the  Legislature  of  Kentucky,  acting  upon  this 
suggestion,  made  an  alarming  addition  to  its  pre- 
vious Resolutions,  when  it  declared  "  that  the  prin- 
ciple and  construction  . . .  that  the  general  government 
is  the  exclusive  judge  of  the  extent  of  the  powers 
delegated  to  it,  stop  not  short  of  despotism,  since 
the  discretion  of  those  who  administer  the  govern- 
ment, and  not  the  Constitution,  would  be  the  measure 
of  their  powers :  That  the  several  States  who  formed 
that  instrument,  being  sovereign  and  independent, 
have  the  unquestionable  right  to  judge  of  the  infrac- 
tion ;  and.  That  a  nullification,  by  those  sovereignties 
of  all  unauthorized  acts  done  under  color  of  that 
instrument,  is  the  rightful  remedy/^  ^ 

The  nullification  of  an  act  of  the  Federal  Govern- 

^  Cf.  Appendix  for  text  of  the  Virginia  and  Kentucky  Reso- 
lutions. 


gS  Story  of  the  Constitution 

ment  by  a  siugle  State  perhaps  went  further  than 
Jefferson  had  really  intended.  Certain  it  is  that 
late  in  life  he  took  a  different  view.  "  The  ultimate 
arbiter,"  he  said,  "  is  the  people  of  the  Union,  as- 
sembled by  their  deputies  in  convention  at  the  call 
of  Congress,  or  of  two  thirds  of  the  States."  And 
Madison  was  at  great  pains  to  sliow  that  it  was  not 
a  "  constitutional,"  but  a  "  natural  "  right, — that  of 
revolution, — which  was  meant  by  both  the  Virginia 
and  Kentucky  Resolutions.^ 

The  triumph  of  Jefferson  in  the  election  of  1800 
did  not  bring  the  overthrow  of  the  measures  which 
had  given  strength  to  the  government.  There  was, 
to  be  sure,  some  attempt  made  in  the  earlier  years 
to  lessen  the  expenses  of  the  central  government, 
and  the  army  and  navy  underwent  what  Jefferson 
himself  called  a  "  chaste  reformation  " ;  but  Hamil- 
ton had  correctly  estimated  eTefferson's  character  and 
course  when  he  wrote  to  Bayard  that  "  he  [Jefferson] 
is  as  likely  as  any  man  I  know  to  temporise,  to  cal- 
culate what  will  be  likely  to  promote  his  own  repu- 
tation and  advantage;  and  the  probable  result  of 
such  a  temper  is  the  preservation  of  systems,  though 
originally  opposed  to  them,  which,  being  once  estab- 
lished, could  not  be  overthrown  without  danger  to 
the  person  who  did  it."  -  External  reforms  there 
were,  but  not  a  single  limitation  of  dangerous  powers 
or  curtailment  of  latent  strength.  In  the  purchase 
of  Louisiana,  moreover,  the  doctrine  of  "  strict  con- 
struction "  received  an  irremediable  hurt.     Jefferson 

1  Letters  and  Other  Writijigs  of  James  Madison,  vol.  iv., 
passim. 

2  Works,  X.,  413. 


Thomas  Jefferson  99 

acknowledjiod  tliat  "  tlio  executive,  in  seizin";  the 
fuii'itivo  occnrreuco  wliioli  so  mnch  advances  the  ij^ood 
of  (lu'ii-  country,  ha.s  done  an  act  beyond  the  (/onsti- 
Inlion.  The  legislature  .  .  .  must  ratify  and  ]>ay 
for  it,  and  throw  themselves  on  their  country  "  for 
an  act  of  indemnity.^  He  drew  up  an  amendment 
to  the  Constitution  to  cover  the  case  and  urged  his 
friends  not  to  make  the  Constitution  a  "  blank  paper 
by  construction  "  -;  but  his  party  skipped  lightly  over 
the  constitutionality  of  the  acquisition,  the  amend- 
ment was  not  pressed,  and  Jefferson  acquiesced.^ 

Strange  conduct  this  for  a  man  who  believed  the 
Constitution  was  a  compact  entered  into  by  sov- 
ereign States  for  the  attainment  of  certain  specific 
objects,  and  that  any  measure  likely  to  change  the 
fixed  relationships  thus  established  must  be  agreed 
to  by  all  the  parties.  Little  reverence  had  he  for 
the  security  furnished  by  "  tlie  possession  of  a 
written  constitution,"  when  the  provisions  of  that 
constitution  stood  in  the  waj^  of  accomplishing  pur- 
poses he  desired!  Not  all  the  Federalist  stretches 
of  constitutional  provisions  in  the  twelve  years  of 
their  power  could  surpass  this  one  in  importance, 
and  Jefferson,  as  the  leader  of  the  Democratic- 
Republican  party,  must  share  in  the  responsibility 
for  it.  In  the  course  of  his  two  administrations,  the 
Democratic-Republican  party  performed  successfully 
the  larger  part  of  the  feat  of  swallowing  the  Fed- 
eralist party  and  its  principles.     His  futile  efforts 

1  Works,  X.,  411. 
'^  Ibid.,  X.,  419. 

3  Ibid.,  X.,  420.  "  If,  however,  our  friends  shall  think  dif- 
ferently, certainly  I   shall  acquiesce  with  satisfaction." 


loo  Story  of  the  Constitution 

to  maintain  our  rights  against  England  and  France 
were  carried  through  Congress  without  question,  and 
the  Embargo,  with  its  Enforcing  Acts,  surpassed 
the  Alien  and  Sedition  Laws  in  their  encroachments 
upon  individual  liberty. 

Jefferson's  later  years  were  spent  in  the  retire- 
ment of  Monticello,  whither  the  country  turned  again 
and  again  for  words  of  wisdom  from  the  "  Sage." 
He  beheld  the  great  triumph  of  Democracy,  but  with 
it  the  growth  of  a  truly  national  sentiment,  coincident 
with  an  ever  increasing  power  in  the  hands  of  the 
national  government.  His  success  was  in  his  faith, 
not  in  his  works.  From  the  standpoint  of  actual 
achievement  in  national  affairs,  only  the  Louisiana 
Purchase  saves  him  from  complete  failure;  from  the 
standpoint  of  political  influence  his  faith  in  the  peo- 
ple makes  him  a  vital  force  to-day.  His  greatest 
fault  was  that  "  he  died,  as  he  had  lived,  in  the  odour 
of  phrases"^;  his  greatest  virtue  that  he  was  wise 
enough  to  sacrifice  phrases  to  reality,  to  accept  in 
practice  what  he  rejected  in  theory. 

1  Oliver,  p.  256. 


V 

James  Madison.      Growth   through 
Formulation 


JAMES  MADISON 

1751.     March  16.  Born  in  King  George  County,  Va. 

1771.  Graduated  from  College  of  New  Jersey. 

1774.  Member  of  Committee  of  Safety  from  Orange 

County. 

1776.  Delegate  to  State  Convention. 

1780.  Delegate  to   Continental  Congress. 

1784-86.  Representative  in   State   Legislature. 

1786.  Represented    Virginia    at    Annapolis   Conven- 

tion. 
1786-88.  Delegate  to  Continental  Congress. 

1787.  Member  of  Constitutional  Convention. 
1789-97.                   Member  of  Congi-ess  and  leader  of  Republican 

Party. 

1798.  Author  of  Virginia  Resolutions. 

1801-09.  Secretary  of  State. 

1809-1817.  President. 

1812-14.  War.      (June  18,  1812-Dec.  24,  1814.) 

1829.  Member    of   Virginia    Constitutional    Conven- 

tion. 

1836.     June  28.      Died  at  Montpelier,  Va. 


James  Madison.     Growth  through 
Formulation 

MADISON  has  often  been  called  the  "  Father 
of  the  Constitution "  and  the  title  is  well- 
bestowed,  for  no  man  saw  more  clearly  than  he  the 
weakness  of  the  Confederation  and  the  need  for  a 
stronger  Union;  no  one  strove  more  diligently  or 
successfully  to  secure  the  Annapolis,  and  later  the 
Constitutional,  Convention ;  no  one  in  the  Federal 
Convention  was  more  influential  in  determining  the 
form  the  new  constitution  should  take;  no  one  was 
more  valiant  in  defence  of  the  work  of  their  hands, 
and  no  one  was  more  skilful  in  securing  its  adoption; 
not  alone  in  the  convention  of  his  native  State,  but, 
through  the  Fedendist,  in  those  of  other  States,  his  in- 
fluence in  favor  of  ratification  was  strong. 

When  the  work  of  formulation  and  adoption  was 
over,  only  the  first  step  toward  national  Union  had 
been  taken;  in  it  Madison  played  a  principal  part; 
in  the  second  step  of  administering  the  new  go\erii- 
ment  that  liad  been  formed,  in  l)riuging  into  opera- 
tion national  forces,  Madison  appears  as  leader  of 
the  opposition  in  Congress,  and  there  arose  a  bitter 

103 


I04  Story  of  the  Constitution 

personal  and  political  animosity  to  Hamilton  and  to 
all  of  his  measures  that  tended  toward  a  strong 
Federal  Government.^ 

In  the  Constitutional  Convention  and  in  the  State 
conventions  for  adopting  the  Constitution,  parties 
divided  on  the  question  of  the  kind  of  government 
to  be  instituted,  on  the  question  whether  it  should 
be  a  loose  confederation  of  sovereign  States  or  a 
Federal  Government,  national  in  its  purposes  and  ex- 
tent and  supreme  within  its  sphere.  After  the  adop- 
tion of  the  Constitution  the  question  that  divides 
them  is  not  one  of  kind,  but  of  extent.  How  far 
has  this  national  government  been  entrusted  with 
powers  by  the  Constitution? 

On  the  question  of  the  interpretation  of  the  Con- 
stitution, Madison  followed  the  lead  of  Jefferson 
rather  than  that  of  Hamilton  and  ranked  himself  un- 
der the  banner  of  "  strict  construction."  To  his  old 
friends  the  change  appeared  a  desertion  from  motives 
of  political  preferment.  Though  motives  of  policy 
and  personal  friendship  for  Jefferson  had  their 
weight,  a  deeper  motive  must  be  sought.  It  will  be 
found  in  the  real  difference  between  the  States,  which 
Madison  repeatedly  declared  was  not  between  the 
large  and  the  small  States,  but  between  the  North 
and  the  South,  between  commerce  and  agriculture, 
between  free  and  slave,  and  Madison  followed 
Virginia  and  the  South.- 

As  President,  Madison  carried  out  the  policies  of 
Jefferson  till  forced  into  an  unwelcome  party  war 

1  S.  W.  Gay,  James  Madison,  p.  144  ff. 

-  Ibid.,  p.  164.  "  The  institution  of  slavery  and  its  con- 
sequences formed  the  line  of  discrimination." 


James  Madison  105 

in  violation  of  his  personal  fcolini^s  and  of  his  po- 
litical faith.  Tlie  results  of  the  war  did  more  to 
strenj»theu  the  bond  of  union  and  sense  of  national 
feeling  than  any  previous  event  in  the  country's  his- 
tory, and  ;Madison  thereby  became  the  unconscious 
a<;ent  of  the  centralizing  forces  to  which  he  was  so 
ardently  opposed.  The  later  years  of  his  life  were 
spent  in  trying  to  teach  his  countrymen  the  true  ex- 
position of  the  Constitution,  but  his  words  fell  upon 
the  ears  of  unresponsive,  though  deferential,  hearers. 

For  more  than  forty  years  Madison  filled,  almost 
without  interruption,  some  public  office,  but  his 
talents  were  not  always  of  the  sort  that  fitted  him 
for  the  performance  of  the  duties  of  the  position  to 
which  he  was  called.  His  career  falls  naturally  into 
the  three  periods  of  legislative  activity,  executive 
functions,  and  retirement  devoted  to  exposition.  The 
first  closed  with  his  retirement  from  the  Virginia 
Assembly  in  1800,  the  second  with  the  conclusion  of 
his  second  term  as  President  in  1817,  and  the  third 
with  his  death  in  1836. 

Born  of  a  well-to-do  Virginia  family  in  1751,  grad- 
uated from  the  College  of  New  Jersey  at  Princeton 
in  1771,  Madison  entered  upon  a  career  of  political 
life  with  more  than  the  average  social  and  intellec- 
tual equipment.^  Almost  immediately  upon  his 
return  from  college,  where  he  had  lingered  for  an 
additional  year  of  study,  he  was  made  a  member  of 
the  "  Committee  of  Safety  "  of  his  native  county  of 
Orange.  Two  years  later  he  was  a  delegate  to  the 
State  convention  which  instructed  its  representatives 
in  the  Continental  Congress  to  propose  a  Declaration 

1  Biographies  by  Rives,  Gay,  and  Hunt. 


io6  Story  of  the  Constitution 

of  the  Independence  of  the  colonies.  The  convention 
then  proceeded  to  draw  up  a  Bill  of  Rights  and  a 
constitution;  Madison  was  appointed  a  member  of 
the  committee  on  the  constitution  and  at  the  age  of 
twenty-three  made  his  first  attempt  at  formulating 
an  instrument  of  government.  To  him  is  to  be  at- 
tributed the  authorship  of  the  clause  in  tlie  Bill  of 
Rights  declaring  that  "  all  men  are  equally  entitled 
to  the  free  exercise  of  religion  according  to  the 
dictates  of  conscience."  ^ 

In  1780  we  find  him  making  his  entrance  into  na- 
tional affairs — if  such  they  could  be  called — as  a 
delegate  to  the  Continental  Congress,  where  he  soon 
became  chairman  of  the  Committee  on  Foreign 
Relations ;  he  opposed  vigorously  the  proposed  cession 
of  the  Mississippi  valley  to  Spain  in  return  for  an 
alliance,  and  only  under  protest  would  he  instruct 
Jay  to  this  effect;  when  the  surrender  of  Cornwallis 
made  the  recall  of  the  instructions  possible,  he  lost  no 
time  in  doing  so.  Already  he  caught  some  glimpse 
of  the  future  of  tlie  United  States;  already  there 
was  dimly  conscious  to  his  mind  some  vision  of  the 
great  nation  that  should  go  sweeping  to  the  Pacific, 
and  from  this  time  until  tlie  Constitution  was  adopted 
there  was  no  stauncher  advocate  than  he  of  the  estab- 
lishment of  a  union  with  a  strong  central  govern- 
ment;— a  union  and  a  government  strong  enough  to 
enable  the  people  to  enter  into  the  great  heritage  of 
the  West,  as  well  as  of  the  East. 

Like  most  of  the  thoughtful  men  of  the  day,  Madi- 
son saw  that  the  weakness  of  the  Confederation  was 
rooted  in  its  powerlessness  to  raise  money;  the  lack 

1  Gay,  op.  cit.,  p.  16. 


James  Madison  107 

of  money  in  this  case  was  the  root  of  all  evil,  for, 
as  lie  said,  that  lack  "  is  the  source  of  all  our  public 
difficulties  and  misfortunes."^  He  persistently  urged 
upon  Congress  and  the  States  the  adoption  of  ade- 
(luate  revenue  measures.  The  Articles  of  Confedera- 
tion provided  that  the  expenses  of  the  war  should 
be  borne  by  the  States  in  proportion  to  the  value  of 
their  lands.  Upon  a  proposal  to  amend  this  provi- 
sion and  to  substitute  population  for  lands,  the 
question  immediately  arose  whether  the  slaves  should 
be  counted  in  the  enumeration;  after  much  heated 
discussion  and  sliarp  divergence  between  the  North- 
ern and  the  Southern  States,  Madison  proposed  "  in 
order  to  give  a  proof  of  the  sincerity  of  his  profes- 
sions of  liberality,  that  slaves  should  be  rated  as 
five  to  three."  -  The  proposal  was  adopted  and  be- 
came the  precedent  for  the  action  of  tlie  Federal 
Convention  four  years  later  in  the  compromise  on 
rei^resentation. 

Madison  was  a  leading  spirit  in  the  movement  that 
led  up  step  by  step  to  the  calling  of  the  Constitu- 
tional Convention.  He  first  suggested  to  Jefferson, 
then  a  delegate  in  Congress,  the  "  anomalous  con- 
dition of  things  on  the  Potomac,"  and  proposed  a 
conference  with  the  Maryland  delegates  upon  the 
subject.  They  received  Jefferson's  suggestion  for  a 
commission  favorably  and  the  Legislature  of  the 
State  appointed  it,  but  when  the  commissioners  met 
witli  those  from  Virginia  they  found  themselves  un- 
able to  settle  all  the  questions  involved.  Pennsyl- 
vania and  Delaware  had  interests  in  any  commercial 

1  Writings,  ed.  by  Gaillard  Hunt,  vi.,  93. 

2  Gay,  op.  cit.,  p.  41. 


io8  Story  of  the  Constitution 

regulations  for  the  river  and  it  was  determined  by 
ttie  Legislature  of  Maryland,  upon  consideration  of 
the  report  of  the  commissioners,  to  widen  the  scope  of 
action  and  an  invitation  was  issued  to  all  the  States 
to  send  delegates  to  a  convention  at  Annapolis.  Madi- 
son, in  the  Virginia  Legislature,  secured  the  appoint- 
ment of  commissioners  from  the  State.  The  story  of 
how  the  Annapolis  Convention  led  to  the  calling  of 
the  Convention  at  Philadelphia  has  already  been  told.^ 

Among  the  distinguished  delegates  from  Virginia 
Madison's  name  ranks  next  to  that  of  Washington. 
Feeling  the  tremendous  importance  of  the  issue  at 
stake,  he  set  about  to  fit  himself  as  fully  as  possible 
for  the  high  task  by  mastering  the  history  of  con- 
federacies and  federal  arrangements,  both  ancient 
and  modern,  and  after  the  Convention  had  begun  its 
deliberations,  with  almost  incredible  assiduity,  he 
made  notes  of  the  debates  while  they  were  in  pro- 
gress; these  he  subsequently  transcribed  at  length, 
thus  furnishing  us  with  an  invaluable  record  of  the 
struggle  that  raged  round  the  forming  of  the  Consti- 
tution and  leaving  a  priceless  commentary  on  the 
character  and  talents  of  the  members.^ 

Madison,  in  conference  with  the  other  delegates 
from  Virginia,  drew  up  in  advance  the  outline  of  a 
government  which  Randolph  submitted  to  the  Con- 
vention and  which  became  known  as  the  "  Virginia 
plan."  ^  This  plan  provided  for  a  radical  change  in 
the  nature  of  the  Union,  the  change  from  a  mere 

1  Cf.  Chap.  I. 

2  Writings,  vols.  iii.  and  iv.  "  Journal  of  the  Constitutional 
Convention."  Found  also  in  Elliot's  Debates,  vol.  v.,  and  in  the 
Documentary  History  of  the  Constitnfioh,  vol.   iii. 

3  Writings,  iii.,  17  ff,  and  Doc.  Hist.,  iii.,  17  ff. 


James  Madison  109 

league  of  discordant  states  to  a  national  state,  ex- 
ercising its  authority  directly  and,  within  its  sphere, 
supremely  over  the  individuals  composing  it. 

Madison  believed  it  essential,  if  the  Union  was  to 
he  preserved,  that  there  should  be  a  change  from  the 
basis  of  the  old  Confederation :  its  foundation  was 
laid  in  fundamental  error  and  a  return  to  first  prin- 
ciples was  necessary;  its  defects  were  radical  and 
unalterable  so  long  as  the  Union  remained  a  mere 
C(mfederacy.^  The  chief  faults  of  the  Confederation 
were  three  in  number:  first,  that  it  attempted  to 
exercise  authority  over  the  States  in  their  corporate 
capacity  without  reaching  the  individuals  who  com- 
posed them;  second,  that  each  State  had  an  equal 
voice  in  the  deliberative  council  of  the  Union;  third, 
that  it  lacked  the  sanction  of  the  authority  of  the 
people  for  its  laws.  So  long  as  these  defects  re- 
mained, there  could  be  no  hope  of  strength  or  unity 
of  action  in  the  government;  but  Madison  w^as  far 
from  desiring  a  consolidation  of  the  States  which 
would  destroy  their  identity  and  individuality.  Like 
Wilson,  he  desired  a  confederated  republic,  "  an 
association  of  two  or  more  states  into  one  state," 
—a  "  form  of  government  by  which  several  smaller 
states  agreed  to  become  members  of  a  larger  one, 
which  they  intend  to  form."  Yet  Madison  never 
seemed  to  grasp  with  the  same  precision  and  clear- 
ness as  Wilson,  the  idea  of  a  new  state  thus  formed, 
composed  of  the  individuals  of  all  the  States.  There 
is  lacking  any  clear-cut  conception  of  the  whole 
people,  united  by  the  Constitution  into  a  single  state, 

1  Writings,  iii.,  200  ff,  and  Dor.  Hist.,  iii.,  151  ff. 


no  Story  of  the  Constitution 

irrespective  of  the  existence  of  the  State  governments, 
for  the  purposes  for  which  it  was  established. 

Wilson  had  said  that,  "  in  considering  the  national 
government  and  its  purposes,  the  State  governments 
were  to  be  regarded  as  non-existent."  ^  To  such  a 
conception  as  this  Madison  never  attained.  For  him 
the  national  government  is  always  a  compound  form, 
partaking  both  of  a  national  and  a  federal  character. 
"  In  its  foundation  it  is  federal,  not  national ;  in  the 
sources  from  which  the  ordinary  powers  of  the  gov- 
ernment are  drawn,  it  is  partly  federal  and  partly 
national;  in  the  operation  of  these  powers,  it  is 
national,  not  federal;  in  the  extent  of  them,  again, 
it  is  federal,  not  national ;  and,  finally,  in  the  authori- 
tative mode  of  introducing  amendments,  it  is  neither 
wholly  federal  nor  wholly  national."  -  Though  Madi- 
son declared  the  Constitution  to  be  the  supreme  law 
of  the  land,  though  he  denied  tliat  it  was  a  treaty, 
dependent  on  the  good  faith  of  the  individual  States, 
and  though  he  maintained  that  the  national  govern- 
ment is  the  judge  of  its  own  powers,  and  that  if  it 
oversteps  its  bounds  the  people  are  to  judge  and 
to  institute  correction,  \ei  the  States  as  sovereign- 
ties and  their  governments  subtended  a  far  larger 
angle  in  his  horizon  than  in  that  of  Wilson  or 
Hamilton. 

This  became  evident  in  the  first  Congress,  in  wliich 
^ladison  was  a  representative  from  Virginia.  De- 
spite the  extent  of  his  labors  in  the  Constitutional 
Convention  to  secure  strength  for  the  new  govern- 
ment; despite  the  vigor  of  his  advocacy  of  its  adop 

1  Writings,  iii.,  279,  and  Doc.  Hist.,  iii.,  209. 

2  Federalist,  Ford's  edition,  No.  39. 


James  Madison 


I II 


tion,  botl)  in  the  Federalist  and  in  the  Virginia 
Convention,  when  once  tlie  Tonstitntion  was  adopted 
and  the  new  Federal  Government  set  in  motion,  Madi- 
son found  iiimself  immediately  in  opposition  to 
Hamilton  and  his  financial  measures.  The  great 
ditticulty  that  had  confronted  the  members  of  the 
Constitutional  Convention  Iiad  been  to  secure  even 
a  minimum  of  strengtli  for  the  central  government; 
to  accomplish  this  end  Madiscm  labored  with  a  zeal 
and  ardor  of  expression  which  it  is  difficult  to  recon- 
cile with  his  later  and  more  cautious  views.  As  the 
new  government  which  had  been  wrought  out  with 
such  infinite  toil  and  solicitude,  which  seemed  so  new 
and  weak  in  comparison  with  the  great  States  of 
Virginia  and  Massachusetts,  grew  in  a  single  night 
under  the  magic  spell  of  Hamilton's  financial  meas- 
ures and  constitutional  doctrines,  Madison  drew 
back  before  the  work  of  his  own  hands  and,  as  a 
member  of  Congress,  sought  to  stem  the  rising  tide 
of  federal  greatness  that  seemed  to  him  to  threaten 
with  extinction  the  States,  the  basis  of  the  Union. ^ 
He  could  no  longer  follow  Hamilton  and  an  old 
political  and  personal  friendship  was  broken;  a  new 
association  with  Jefferson  and  the  strict  construc- 
tionists was  formed.  But  Madison  could  never  break 
away  altogether  from  old  traditions  and  association ; 
he  could  never  become  the  radical  democrat  and 
extremist  in  regard  to  the  limitation  of  the  powers 
of  all  governments,  and  of  the  Federal  Government 
in  particular,  that  Jefferson  was. 

The  success  of  the  Federalist  party  and   the  in- 
temperate abuse  of  the  Democratic-Republicans  com- 

1  Gay,  op.  cit.,  p.  144  ff. 


112  Story  of  the  Constitution 

bined  to  drive  the  former  party  to  pass  those  extreme 
measures,  the  Alien  and  Sedition  Acts  of  1798.  They 
were  tlie  culminating  points  in  the  long  series  of 
measures  by  which  the  power  of  the  central  govern- 
ment had  been  increased  since  Hamilton  had  first 
introduced  his  financial  measures  nearly  ten  years 
before.  They  proved  to  be  the  final  straw  that  broke 
the  supremacy  of  the  Federalist  party.  Threatening 
as  they  did  the  rights  of  individual  liberty,  as  well 
as  conferring  undue  power  upon  the  Executive,  they 
were  far  more  infiuential  as  the  end  of  a  series  of 
aggressions  than  they  could  ever  have  been  had  they 
stood  alone.  They  went  further  than  the  good  sense 
of  the  people  deemed  wise,  and  after  their  passage 
nothing  could  have  stayed  the  doom  of  the  Federalist 
party. 

The  opponents  of  the  measures  and  of  the  party 
that  had  fathered  them,  everywhere  raised  the  cry 
that  the  acts  were  unconstitutional.  No  one  assailed 
the  measures  more  vigorously,  or  more  covertly,  than 
Jefferson,  whose  position  as  Vice-President  made  it 
inexpedient  for  him  to  come  out  openly  as  the  leader 
of  the  opposition,  and  whose  disposition  always  led 
him  to  fight  through  others.  Jefferson,  however,  was 
the  recognized  leader  of  the  Democratic-Kepublican 
party,  and  it  was  well  understood  that  anything 
done  by  the  party  or  its  more  prominent  representa- 
tives was  done  either  at  his  instigation  or  with  }?is 
acquiescence. 

On  this  occasion  action  was  taken  at  the  instiga- 
tion of  Jefferson  in  the  form  of  the  Kentucky  and 
Virginia  Eesolutions  of  1798;  a  draft  for  tlie  foriiKM* 
was  made  by  Jefferson  with  his  own  hand,  but  it  was 


James  Madison  113 

somewhat  inodifiod  bofoi-e  adoption  by  the  Legislature. 
The  Virginia  Kesolntions  were  drawn  up  by  Madison 
after  consultation  with  Jefferson,  and  are  worth  a 
detailed  consideration,  both  from  their  importance 
at  the  time  and  from  the  later  significance  attached 
to  them  upon  the  proposal  of  the  doctrine  of 
Nullification.^ 

It  must  be  borne  in  mind  that  at  this  time  the 
right  of  the  Supreme  Court  to  declare  a  law  un- 
constitutional had  not  been  determined;  it  w^as  an 
open  question  about  which  different  views  were  held; 
the  existence  of  the  right  in  any  part  of  the  ma- 
chinery of  the  dual  form  of  government,  and  its 
location  in  the  event  it  did  exist,  were  alike  unsettled. 
Though  the  authors  of  tlie  Federalist  had  maintained 
the  existence  of  such  a  power  and  had  ascribed  it 
to  the  Supreme  Court,^  yet  the  Constitution  itself 
said  not  a  word  on  the  subject,  and  it  took  the  won- 
derful cogency  of  Marshall's  logic  in  the  famous  case 
of  Marbury  r.  Madison  in  1803,  to  present  in  an 
Irrefutable  manner  this  function  as  indispensably 
lodged  in  the  Supreme  Court,  and,  by  inference,  in 
the  other  courts.^  If  such  were  not  the  case,  then 
all  the  labor  of  constitution-makers  in  State  and 
nation  to  raise  the  instrument  of  government  above 
the  plane  of  ordinary  laws  had  been  in  vain ;  all 
their  efforts  to  give  an  added  permanence  and  stabil- 
ity to  the  fundamental  law  were  futile;  the  asser- 
tion contained  in  the  Constitution  itself  that  it  was 
the  supreme  law  of  the  land  was  utterly  false,  and 

1  Cf.  Appendix  for  the  Resolutions. 

2C/.  Federalist,  Nos.  44  and  78. 

3  U.  S.  Supreme  Court  Reports,  1    Cranch  137. 


114  Story  of  the  Constitution 

the  new  experiment  in  government  made  by  the  United 
States  was  doomed  to  failure. 

It  was  the  third  of  the  Virginia  Resolutions  that 
the  Nullifiers  seized  upon  more  than  thirty  years 
later,  and  that  caused  Madison  many  weary  hours  of 
explanation  in  seeking  to  free  Jefferson  and  himself 
from  the  charge  of  being  the  authors  of  the  new 
doctrine.^  After  declaring  that  the  powers  of  the 
Federal  Government  were  the  result  of  a  compact 
to  which  the  States  were  parties,  that  these  powers 
were  no  further  valid  than  they  are  authorized  by 
the  grants  enumerated  in  that  compact,  this  resolu- 
tion closed  with  the  assertion 

That,  in  case  of  a  deliberate,  palpable,  and  dangerous 
exercise  of  other  powers  not  granted  by  the  said  compact, 
the  States,  who  are  the  parties  thereto,  have  the  right 
and  are  in  duty  bound,  to  interpose  for  arresting  the 
progress  of  the  evil,  and  for  maintaining  within  their 
respective  limits  the  authorities,  rights,  and  liberties 
appertaining  to  them. 

At  first  glance  it  seems  not  unreasonable  to  credit 
Madison  and  the  Virginia  Resolutions  of  1798  with 
propounding  a  doctrine  which  approaches  perilously 
near  Nullification.  Madison's  explanation,  given  in 
1829,  of  what  was  meant  by  this  third  resolution  of 
1798,  may  be  regarded  as  his  final  conception  of  the 
nature  of  the  Union,  and  is  best  understood  in  con- 
nection with  his  general  views  upon  the  question  of 
government.  That  civil  society,  or  the  state,  was  the 
result  of  contract  among  the  individual  members  was 

1  Cf.  Letters  and  other  Writings  of  James  Madison,  vol.  iv., 
p.  229. 


James  Madison  115 

an  idea  common  to  Madison  as  to  all  the  political 
philosophers  of  the  age;  from  the  days  when  he  was 
writing  for  the  Federalist  to  the  time  of  his  latest 
utterance  he  regarded  the  social  compact  as  the  basis 
of  all  political  and  social  life.  By  it  the  consent  of 
all  was  replaced  by  the  consent  of  the  majority  and 
from  it  came  all  power  in  a  free  government.  The 
Constitution  of  the  United  States  he  held  to  be  of 
a  double  character;  it  is  at  one  and  the  same  time 
both  the  original  social  compact,  that  admittedly  lay 
at  the  basis  of  all  civil  society,  and  the  compact  by 
which  the  people  in  the  social  state  agreed  to  a 
government  over  them.^  This  latter  compact  it  is 
which  is  between  the  individuals  as  embodied  in  the 
States,  hence  no  State  can  release  itself  at  will  from 
the  compact.  "  The  real  parties  to  the  constitutional 
compact  of  the  United  States,"  said  Madison,  "  are 
the  States — that  is,  the  people  thereof  respectively 
in  their  sovereign  character,  and  they  alone/'  ^  Madi- 
son differed  radically  from  the  Nullifiers  and,  later, 
the  Secessionists:  he  denied  that  the  parties  to  the 
compact  are  the  States  in  their  organized  capacity, 
or  that  the  Union  is  a  league  or  the  Constitution  is 
a  treaty.  "  States  have  no  more  right  to  break  away 
than  have  cities  within  a  State."  The  Constitution 
"  is  a  compact  among  the  States  in  their  highest 
sovereign  capacity,  and  constituting  the  people 
thereof  one  people  for  certain  purposes,  it  cannot 
be  altered  or  annulled  at  the  will  of  the  States  indi- 
vidually." Madison  is  careful  to  point  out  that  in 
the  Virginia  Resolutions  the  plural  "  States  "  is  used 

1  Letters,  etc.,  iv.,  63. 

2  Ibid.,  iv.,  18. 


ii6  Story  of  the  Constitution 

and  to  deny  to  the  individual  "  State  "  the  right  to 
nullify  a  law  of  the  Federal  Government.  "  Vir- 
ginia," he  declared,  "  asserted  that  the  States,  as 
parties  to  the  constitutional  compact,  had  a  right 
and  were  bound,  in  extreme  cases  only,  and  after  a 
failure  of  all  efforts  for  redress  under  the  forms 
of  the  Constitution,  to  interpose  in  their  sovereign 
capacity  for  the  purpose  of  arresting  the  evil  of 
usurpation  and  preserving  the  Constitution  and  the 
Union,"  while  "  the  doctrine  of  the  present  day  in 
South  Carolina  asserts,  that  in  a  case  of  not  greater 
magnitude  than  the  degree  of  inequality  in  the  opera- 
tion of  a  tariff  in  favor  of  manufactures,  she  may  of 
herself  finally  decide,  by  virtue  of  her  sovereignty, 
that  the  Constitution  has  been  violated;  and  that  if 
not  yielded  to  by  the  Federal  Government,  though 
supported  by  all  the  other  States,  she  may  rightfully 
resist  it  and  withdraw  herself  from  the  Union."  ^ 

According  to  the  doctrine  of  1798,  ours  is  a  "  con- 
stitutional union  " ;  "  the  error,"  said  Madison,  in 
writing  to  Edward  Livingston  in  1830,  "  in  the  com- 
ments on  the  Virginia  ijroceedings  has  arisen  from 
a  failure  to  distinguish  between  what  is  declaratory 
of  opinion  and  what  is  ipso  facto  executory ;  between 
the  right  of  the  parties  to  the  Constitution  and  of  a 
single  party;  and  between  resorts  within  the  purview 
of  the  Constitution  and  the  ultima  ratio  which  ap- 
peals from  a  Constitution,  cancelled  by  its  abuses, 
to  original  rights  paramount  to  all  constitutions."  - 

In  short,  the  Virginia  Resolutions,  as  interpreted 
by  Madison  in  1830,  recognized  the  right  of  revolu- 

1  Letters,  etc.,  iv.,  44. 

2  Ibid.,  iv.,  80. 


James  Madison  117 

tion,  which  the  Nnllifiers  were  attempting  to  erect 
into  a  constitutional  right.  As  he  said  in  his  famous 
letter  to  Edward  Everett,  in  the  same  year: 

In  the  event  of  a  failure  of  every  oonstitntional  re- 
sort, and  an  accumulation  of  usurpations  and  abuses 
rendering  passive  obedience  and  non-resistance  a  greater 
evil  than  resistance  and  revolution,  there  can  remain 
but  one  resort,  the  last  of  all,  an  appeal  from  the  can- 
celled obligations  of  the  constitutional  compact  to  origi- 
nal rights  and  the  law  of  self-preservation.  This  is  the 
"  ultima  ratio  "  under  all  governments,  whether  consoli- 
dated, confederated,  or  a  compound  of  both;  and  it  can- 
not be  doubted  that  a  single  member  of  the  Union  in  the 
extremity  supposed,  but  in  that  only,  would  have  a  right, 
as  an  extra  and  ultra  constitutional  right,  to  make  the 
appeal. 1 

The  Federal  Union,  then,  was  no  mere  league,  no 
"  rope  of  sand  "  to  be  broken  by  any  State  at  its 
pleasure,  but  a  strong  national  government  which 
rested  upon  the  consent  of  the  sovereign  people  of 
the  States,  and  which  "operated  directly  on  indi- 
viduals, not  on  States." 

Madison  was  undoubtedly  sincere  when  he  asserted 
again  and  again  that  there  was  no  inconsistency  be- 
tween his  views  in  1798  and  in  1830,  but  the  interpret 
tation  placed  by  him  in  the  latter  year  upon  tlie 
Virginia  Resolutions  was  certainly  not  the  interpre- 
tation placed  upon  them  in  the  former  year  by  the 
vast  majority  of  his  fellow  countrymen. 

When  Jefferson  was  inaugurated  President  in  ISOl, 

1  Letters,  etc.,  iv.,  101. 


ii8  Story  of  the  Constitution 

he  appointed  Madison  liis  Secretary  of  State.  The 
second  phase  of  the  latter's  career,  that  of  an  Ex- 
ecutive, now  begins.  Hitherto  his  political  activity 
had  been  confined  to  the  making  of  laws  and  of  con- 
stitutions; for  the  next  sixteen  years  he  filled  in 
succession  the  two  highest  executive  offices  in  the 
land.  Madison  was  by  natural  instinct  and  training 
a  student  and  few  men  of  his  time  equalled  him  in 
his  knowledge  of  the  history  of  governments.  With 
his  study  there  was  soon  mingled,  as  we  have  seen, 
a  practical  experience  in  the  problems  of  government 
which  ran  the  gamut  from  lowest  to  highest,  from 
member  of  a  Committee  of  Safety  through  the  Con- 
gress of  the  Confederation,  the  Constitutional  Con- 
ventions of  the  United  States  and  of  Virginia,  the 
Assembly  of  his  State  and  the  House  of  Representa- 
tives to  the  Secretaryship  of  State  and  the  Presi- 
dency for  two  terms.  Such  an  active  participation 
in  the  affairs  of  practical  politics  kept  him  from  fol- 
lowing the  visionary  ideals  of  a  student's  chamber. 
Lacking  in  imagination,  he  was  lacking  also  in  fire 
and  brilliancy;  there  was  no  spark  of  genius  as  in 
Hamilton,  no  homely  wit  as  in  Franklin.  Instead 
there  was  careful  consideration  that  approached  hesi- 
tancy; solidity  that  escaped  being  heavy  only  by 
virtue  of  the  lucidity  and  learning  that  accompanied 
it.  In  addition  there  was  a  reasonableness  and  an 
evenness  of  mind  that  fitted  him  most  admirably  for 
the  great  part  he  played  in  the  Constitutional  Con- 
vention. With  too  much  of  calm  deliberation  and 
too  little  of  the  element  of  quick  determination,  he 
failed  of  being  a  successful  Executive.  The  temper 
of  his  mind  was  best  suited  to  the  consideration  of 


James  Madison  119 

the  principles  of  goverimieul  as  they  were  to  be  read 
in  history  and  interpreted  by  experience. 

Jefferson  and  a  large  majority  of  the  party  re- 
garded ^Madison  as  tlie  logical  successor  to  tlie  Presi- 
dency in  1801)  and  as  the  perpetiiator  of  democratic 
principles.  Jeffers(m's  administration  had  given 
more  than  one  severe  wrench  to  the  principles  pro- 
claimed in  1800  and  ]Madison  succeeded  to  a  greatly 
modified  form  of  democratic  principles.  Jefferson 
had  found  it  utterly  impossible  to  undo  the  construc- 
tive work  of  Hamilton ;  reductions  in  the  army  and 
navy,  in  government  expenses  and  taxes,  left  the 
powers  of  the  Federal  Government  undiminished; 
possession  of  power  by  the  Democratic-Republicans 
was  a  far  different  thing  from  its  exercise  by  the 
Federalists  who,  they  thought,  were  sure  to  use  it 
for  the  people's  harm. 

Early  in  Jefferson's  first  administration,  the  pro- 
cess of  absorbing  the  principles  and  practice  of  the 
Federalists  had  begun.  The  two  events  that  con- 
tributed most  to  drive  the  Jeffersonian  Democrats 
into  acting  upon  the  principles  of  their  rivals  were 
the  purchase  of  Louisiana  and  the  second  war  with 
England.  Madison,  as  Secretary  of  State,  assisted  in 
the  negotiations  that  culminated  in  the  purchase  and 
he  shared  Jefferson's  conscientious  scruples  regarding 
the  constitutionality  of  the  acquisition;  even  more 
did  he  doubt  the  legality  of  that  clause  of  the  treaty 
providing  for  the  reception  of  the  inhabitants  of  the 
ceded  territory  as  citizens,  or,  in  other  words,  he 
doubted  the  advisability  of  making  the  Constitution 
follow  the  flag  by  treaty  arrangements.  That  the 
Constitution  does  not  follow  the  flag  merelv  as  the 


1 20  Story  of  the  Constitution 

result  of  the  acquisition  of  territory,  whether  by 
treaty  or  by  conquest,  has  come  to  be  the  settled 
doctrine  of  the  Supreme  Court. 

The  War  of  1812  was  forced  upon  Madison  by  the 
new  spirit  that  found  entrance  into  Congress  in  1811, 
and  the  charge  was  made  that  he  agreed  to  war  as 
the  price  of  a  second  term.^  Certain  it  is  that  a 
policy  of  war  meant  turning  his  back  upon  principles 
that  had  been  regarded  as  fundamental;  it  meant  an 
increase  of  the  army  and  navy,  of  taxation  and  pub- 
lic debt;  it  meant  vigorous  action  on  the  part  of 
the  central  government  and  an  exercise  of  authority 
by  it  that  a  decade  before  would  have  been  regarded 
as  fatal  to  liberty. 

Had  it  not  been  that  the  war  was  a  party  war, 
carried  on  in  the  face  of  an  opposition  from  the  rem- 
nant of  the  Federalist  party  that  came  dangerously 
near  disunion,  its  nationalizing  effect  might  have 
been  vastly  greater.  It  nevertheless  succeeded  in 
gathering  together  and  crystallizing  into  a  strong 
sense  of  patriotism  and  national  sentiment,  the  varied 
elements  begotten  by  national  growth  and  expansion 
and  by  the  brilliant  victories  of  a  national  navy. 
American  pride  had  been  enlisted  on  the  side  of  the 
national  government.  However  discreditable  in  its 
origin  and  conduct,  the  war  firmly  established  the 
government  of  the  United  States  both  at  home  and 
abroad.  For  the  first  time  there  was  a  conscious 
recognition  of  its  permanency  and  its  supremacy. 
Around  it  had  gathered  the  sentiment  of  a  growing 
national  feeling.  Madison's  part  in  this  development 
was  negative  rather  than  positive;  the  war  was  not 

1  Gay,  op.  cit,  p.  296-297. 


James  Madison  121 

of  his  seeking,  but  was  forced  on  bim  by  the  yonng 
generation  that  had  come  out  of  the  West,  whose 
spirit  was  embodied  in  Henry  Clay.  "  We  ask  for 
energy,"  they  said,  "  and  we  are  told  of  his  modera- 
tion; we  ask  for  talent,  and  the  reply  is  his  un- 
assuming merit."  Whether  he  realized  it  or  not, 
whether  he  desired  it  or  not,  Madison  upon  his 
retirement  from  the  presidency  left  behind  him  a 
nation,  for  the  first  time  conscious  of  its  nationality 
and  just  beginning  to  pride  itself  on  its  greatness 
and  its  unlimited  possibilities.  After  the  war  it 
would  have  been  ridiculous  for  any  State  to  put 
forward  pretensions  of  comparing  in  dignity,  honor, 
or  respect,  to  say  nothing  of  power,  with  the  Federal 
Union.  The  Union  was  well  launched  upon  the  sea 
of  nationality,  upon  which  it  has  since  sailed,  with 
many  a  blow  and  now  and  again  a  storm,  but  always 
with  increasing  power  and  always  attended  by  in- 
creasing respect  and  admiration  from  the  great  body 
of  the  people. 

After  his  retirement  from  the  Presidency  in  1817, 
Madison  spent  the  remaining  years  of  his  life  at 
his  home,  Montpelier,  second  only  to  the  "  Sage  of 
Monticello  "  in  the  people's  eyes.  He  engaged  in  a 
voluminous  correspondence  with  his  friends  in  which 
he  gave  fresh  expression  to  his  views  upon  many  of 
the  disputed  questions  regarding  the  character  and 
power  of  the  Federal  Government.  He  still  believed 
the  government  was  compounded  of  federal  and  na- 
tional elements;  the  Constitution,  though  a  compact, 
was  not  one  to  which  the  State  governments  were 
parties,  nor  the  State  governments  on  the  one  hand 
and    the    Federal   Government    on    the   other;   "the 


122  Story  of  the  Constitution 

parties  are  tbe  States,  i.  e.,  tlie  people  thereof  respec- 
tively in  their  sovereign  character  and  they  alone.'- 
Tlie  Supreme  Court  was  still  regarded  as  the  rightful 
arbiter  in  controversies  between  the  Federal  and  the 
State  governments  regarding  their  powers ;  "  if  it 
concur  in  usurpations,  remonstrances,  instruction, 
recurring  elections,  impeachment,  and  amendment 
are  the  remedies  open  to  the  people,  and  should  all 
these  prove  of  no  avail,  there  is  the  final  right  of 
revolution  and  rebellion." 

His  long  career  in  the  public  service,  the  important 
part  he  had  taken  in  the  Constitutional  Convention, 
his  age  and  his  learning  and  the  esteem  in  which 
he  was  held  contributed  to  lend  importance  to  his 
views.  Two  things  tended  to  minimize  their  in- 
fluence: in  the  South,  new  and  special  interests  were 
rapidly  forcing  men  into  constructions  of  the  Con- 
stitution which  were  far  narrower  than  the  limits 
of  the  "  strict  construction "  of  the  Democratic- 
Eepublicans;  in  the  North  the  spirit  of  nationality 
was  far  outrunning  "  Madisonian  Federalism."  There 
was  no  middle  ground  that  could  be  held  success- 
fully between  the  conflicting  tendencies,  and  Madi- 
son's views  were  regarded  by  both  parties  as 
temporizing  and  they  satisfied  neither. 

The  members  of  the  Constitutional  Convention 
were  far  from  unanimous  in  their  opinions  regarding 
their  own  work,  and  some  points  they  had  purposely 
left  unsettled  because  of  the  impossibility  of  agree- 
ment regarding  them.  They  had  taken  a  middle 
ground  through  many  compromises,  but  the  forces 
of  national  development  could  not  be  restrained  l)y 
"  parchment    barriers."     The    elements    of    national 


James  Madison  123 

discord  could  be  hushed  for  a  time,  but  they  could 
not  be  reconciled  by  any  nice  adjustment  of  phrases, 
and  sooner  or  later  they  were  destined  to  break  forth 
into  warring  factions  which  were  the  fiercer  for  their 
long  restraint. 

Madison,  however,  was  dimly  aware  of  a  change 
that  was  taking  place  in  men's  thought,  though  he 
stood  too  near  it  to  l)e  able  to  perceive  it  with  clear- 
ness. What  we  now  recognize  as  a  fundamental 
change  in  the  philosophic  basis  of  thought  was  to 
him  but  a  new  use  of  language.^  The  doctrines  of 
Nullification  and  Secession  are  to  him  "  errors  which 
have  their  source  in  the  silent  innovations  of  time  on 
the  meaning  of  words  and  phrases."  His  attitude  is 
nowhere  more  clearly  shown  than  in  his  view  of 
sovereignty.  In  the  debates  of  the  Constitutional 
Convention,  in  the  pages  of  the  Federalist,  and  in 
his  letters  and  writings  down  to  his  death,  Madison 
proclaims  the  doctrine  of  a  divided  sovereignty.- 
Sovereignty  is  identified  with  supreme  power  and 
this  power  is  divided  between  the  States  in  their 
united  and  in  their  individual  capacities.  It  was 
inconceivable  how  a  confederated  republic  could  be 
established  if  sovereignty  could  not  be  divided.  In 
1830,  five  years  before  his  death,  he  gives  utterance 
to  a  protest  against  a  new  idea  that  was  just  begin- 
ning to  make  its  appearance  under  the  auspices  of 
no  less  distinguished  a  name  than  that  of  Calhoun, 
then  at  the  height  of  his  power.     This  new  idea  pro- 

1  See  a  very  illuminating  article  The  Social  Compact  and 
the  Constitution,  by  A.  C.  McLaughlin  in  the  American  His- 
torical Revietv,  April,  1900. 

-  Cf.  Letters,  etc.,  iv.,  390,   Sovereignty. 


124  Story  of  the  Constitution 

claimed  the  indivisibility  of  sovereignty,  an  idea  that 
Madison  felt  was  subversive  of  the  whole  system  of 
government.  "  If  sovereignty  cannot  be  thus  di- 
vided," he  declared,  "  the  political  system  of  the 
United  States  is  a  chimera,  mocking  the  vain  pre- 
tensions of  human  wisdom."  ^  We  have  come  to 
believe  that  Calhoun  was  right  in  his  view  tliat 
sovereignty  cannot  be  divided,  but  it  took  the  strife 
of  battle  through  four  long  years  to  determine  that 
though  Calhoun  was  right  in  declaring  that  sov- 
ereignty was  indivisible,  he  was  wrong  in  attempting 
to  locate  that  undivided  sovereignty  in  the  individual 
States  and  not  in  the  Federal  State. 

1  Letters,  etc.,  iv.,  61. 


VI 


John  Marshall.      Growth  through 
Legal  Interpretation 


125 


JOHN  MARSHALL 

1755.     Sept.  24.  Born  in  Fauquier  Co.,  Va. 

1775.  At    outbreak    of    Revolution    joined    Virginia 

troops. 
1777.     May.         Promoted  to  Captaincy. 

1779.  Aug.  19.  Returned  to  Virginia  to  take  charge  of  militia. 

Heard  law  lectures  at  William  and  Mary  Col- 
lege. 

1780.  Admitted  to  Bar  at  Williamsburg. 
Delegate  to  House  of  Burgesses. 
Returned  to  his  company. 

1781.  Resigned  and  took  up  practice  in  Fauquier  Co. 
Removed  to  Richmond. 

1782-88.  Delegate  to  House  of  Burgesses. 

1788-91.  Delegate  to  House  of  Burgesses. 

1788.  Member  of  Virginia  Constitutional  Convention. 

Declined    position    of   Attorney-General    under 
Washington. 
1791-97.  Lawyer  at  Richmond. 

1797.  Marshall,  Pinckney,  and   Gerry  appointed  spe- 

cial envoys  to  France. 

1798.  Returned  to  New  York. 
1799-1800.  Representative  in   Congress. 
1800.  Secretary  of  State. 

1801-1835.  Chief  Justice  of  the  Supreme  Court. 

1807.  Tried  Burr. 

1835.    July  6.      Died  at  Philadelphia. 


136 


VI 

John  Marshall.     Growth  through  Legal 
Interpretation 

THE  success  of  the  Democratic-Republican  party 
and  the  election  of  Jefferson  to  the  Presidency 
in  1800  did  not  result  in  depriving  the  Federalists  of 
all  influence  and  control  over  national  affairs.  Though 
the  wave  of  triumphant  democracy  had  swept  away 
the  Federalist  majority  in  both  Houses  of  Congress 
and  liad  seated  the  guiding  spirit  of  the  movement  in 
the  chair  of  the  Chief  Executive,  it  fell  back  baffled 
before  the  Supreme  Court. 

The  theory  of  tlie  makers  of  the  Constitution  that 
a  separation  of  the  powers  of  government  was  es- 
sential to  liberty,  tliat  it  was  necessary  to  balance 
part  against  part,  and  to  oppose  power  to  power,  as 
a  check  upon  tlie  natural  tendency  of  all  govern- 
ments to  strengtlien  themselves  at  the  expense  of  the 
people,  now  brought  unconcealed  chagrin  to  that  very 
.party  which  was  loudest  in  its  outcries  against  the 
dangers  of  centralization.  Though  the  Legislative 
and  Executive  branches  of  the  government  were  con- 
trolled by  the  Democratic-Republicans,  the  Judiciary 
remained  under  Federalist  prepossessions.     Tlie  Su- 

127 


128  Story  of  the  Constitution 

preme  Court  under  the  leadersliij)  of  the  greatest 
of  its  Chief  Justices,  Johu  Marshall  of  Virgiuia,  was 
just  entering  upon  its  career  as  interpreter  of  the 
Constitution.  Despite  the  angry  protests  of  the 
Democratic-llepublicans,  it  continued  the  develop- 
ment of  the  national  theory  of  the  Union  which  had 
been  so  successfully  begun  during  the  twelve  years 
of  Federalist  supremacy. 

The  active,  planning  will  of  the  Federal  Govern- 
ment was  dominated  by  that  party  which  stood  for 
lessening  the  powers  of  the  central  government  and 
maintaining  the  sacredness  of  local  self-government 
as  the  safest  guarantee  of  liberty.  The  Supreme 
Court,  representing  "  judgment,"  not  "  will,"  as  the 
autliors  of  the  Federalist  had  declared,  was  pervaded 
with  the  spirit  of  the  party  that  desired  a  strong 
central  government — and  judgment  triumphed  over 
will. 

In  the  Constitutional  Convention  much  distrust  of 
democracy  bad  been  evidenced  by  the  "  Fathers  "  and 
many  ingenious  devices  had  been  contrived  to  stay 
the  hot  temper  of  the  masses;  the  more  deliberate 
Senate  was  to  check  the  hasty  action  of  a  House  too 
close  to  popular  passions  to  be  altogether  trusted, 
and  a  President's  veto  afforded  still  further  guaran- 
tee of  deliberate  legislative  action.  Moreover,  every 
check  and  balance  of  one  part  of  the  governmental 
machinery  against  another  furnished  a  possible  op- 
portunity for  the  minority  to  prevent  or  delay  the 
action  of  the  majority,  and  of  one  party  to  balk  its 
rival  of  complete  control  of  tlie  government  for  years 
after  the  tide  of  popular  favor  had  swept  that  rival 
into    the    elective    offices.     The    whole    question    of 


John  Marshall  129 

parties  and  consequently  the  possibility  of  a  dead- 
lock between  them,  seems  to  have  been  but  dimly 
perceived  by  the  Inimers  of  the  Constitution. 

P^or  more  than  thirty-four  years  Marshall  served 
as  Chief  Justice  and  under  his  fostering  care  the 
interpretation  of  the  Constitution  in  a  national  sense 
went  on  apace.  It  would,  however,  be  as  absurd 
to  ascribe  this  development  solely  to  the  action  of 
the  Court  as  not  to  recognize  the  fact,  that,  without 
its  action,  the  development  would  have  been  impos- 
sible. Other  and  important  influences  were  at  work 
in  the  same  direction ;  the  Democratic-Republican 
party  found  itself  unable  to  overthrow  the  construc- 
tive measures  of  the  Federalists  and  was  obliged  to 
accept  in  practice,  though  it  rejected  in  theory,  the 
principles  of  their  opponents.  As  a  result  of  this 
process  of  absorption,  both  parties  came  to  recognize 
the  supremacy  of  the  Constitution  and  tlie  function 
of  the  Supreme  Court  as  its  interpreter,  to  acquiesce 
in  tlie  view  that  a  nation  had  been  created  by  tlie 
Constitution  and  to  take  pride  in  its  glory  and 
greatness. 

Tlie  period  of  the  blind  worship  of  the  Constitu- 
tion as  the  chief  cause  of  national  greatness  begins 
and  the  struggle  of  parties  over  "  loose  "  and  "  strict  " 
construction  proves  insufficient  to  preserve  their 
separate  existence.  The  War  of  1812  had  been  the 
principal  cause  of  uniting  all  men  under  the  banner 
of  nationality.  For  the  first  time  the  spirit  of  the 
nation  triumphed  over  that  of  the  States;  the  old 
view  of  the  Union  as  a  mere  league  of  States  was 
pushed  into  the  background,  until  anotlier  genera- 
tion, under  the  strong  pressure  of  economic  suffer- 


13°  Story  of  the  Constitution 

ing,  should  summon  Nullification  to  its  defence. 
Even  then  only  South  Carolina  felt  the  burden  to 
be  intolerable;  another  generation  of  cotton,  slavery, 
and  the  tariff  was  required  to  mould  the  South- 
ern States  into  a  "  solid  South,"  to  draw  them  to- 
gether into  a  common  purpose  and  movement;  when 
this  took  place  Nullification  had  given  way  to  its 
more  logical,  as  well  as  more  destructive,  successor, 
Secession. 

No  name  could  be  more  typical  of  the  great  con- 
stitutional development  of  this  period  than  that  of 
John  Marshall,  the  "  expounder  of  the  Constitution." 
Marshall  was  born  in  Fauquier  County,  Virginia,  on 
September  24,  1755  ^ ;  he  received  his  early  educa- 
tion under  a  private  tutor  and  at  the  outbreak  of 
the  Revolution  had  begun  the  study  of  the  law.  His 
heart  was  always  with  the  patriot  cause  and  he  at 
once  joined  the  Virginia  troops,  was  soon  promoted 
to  a  captaincy  and  took  part  in  the  battles  of 
Monmouth,  Brandywine,  and  Germantown,  and  in 
the  storming  of  Stony  Point.  In  1779  he  returned  to 
Virginia  to  take  charge  of  the  militia,  and  occupied 
his  leisure  by  hearing  the  law  lectures  then  being  de- 
livered at  William  and  Mary  College  by  the  dis- 
tinguished jurist,  George  Wythe,  and  in  1780  was 
admitted  to  tlie  bar  at  Williamsburg.  Believing  that 
he  was  again  needed  in  the  army,  he  returned  alone 
and  on  foot  to  his  company,  but  resigned  the  follow- 
ing year  after  the  surrender  of  Cornwallis,  and  began 

^  Cf.  A.  B.  Magruder,  John  Marshall,  in  American  Statesmen 
Series;  H.  Flanders,  Life  and  Times  of  John  Marshall,  in  Life 
and  Times  of  the  Chief  Justices  of  the  United  States,  vol.  ii., 
pp.  279-550,  and  G.  Van  Santvoord,  Lives  of  the  Chief  Jus- 
tices, vol.  iv.,  pp.  293-456. 


John  Marshall  131 

the.  practice  of  law  in  FaiKiuicr  County  and  then  at 
liicliinoud,  where  liis  success  was  immediate  and 
dislin<;nished. 

Marshall,  like  most  young  Virginia  lawyers,  en- 
tered politics  and  in  1780  was  elected  a  delegate  to 
the  House  of  Burgesses,  in  which  he  continued  to 
serve  almost  uninterruptedly  for  ten  years.  In  1788 
he  was  a  memher  of  the  Virginia  Constitutional  Con- 
vention and  lent  his  active  support  in  favor  of  the 
adoption  of  the  Federal  Constitution.  It  is  a  little 
surprising  that  Marshall  was  not  a  member  of  that 
distinguished  body  of  delegates  from  Virginia  to  the 
Convention  at  Philadelphia ;  certainly  botli  his  talents 
and  his  reputation  would  have  justified  his  selection, 
for  he  declined  the  post  of  Attorney  General  in  Wash- 
ington's Cabinet  to  devote  himself  to  the  practice  of 
his  profession.  Marshall's  next  public  service  was 
in  1797,  when,  with  Pinckney  and  Gerry,  he  was  sent 
as  a  special  envoy  to  France  on  the  mission  that 
gave  rise  to  the  famous  X  Y  Z  letters.  Upon  his 
return  to  New  York  he  was  tendered  a  public  ban- 
quet by  Congress  and  in  the  following  year  he  was 
elected  a  member  of  the  House  of  Representatives. 
President  Adams  appointed  him  Secretary  of  State 
in  1800  and  Chief  Justice  of  the  Supreme  Court  in 
the  following  January.  This  position  Marshall 
filled  with  distinguished  honor  till  his  death  on  July 
6,  1835,  at  Philadelphia. 

As  notable  and  as  varied  as  were  his  public  serv- 
ices, Marshall's  greatest  service  to  his  country  was 
rendered  as  a  judge,  and  it  is  upon  his  interpreta- 
tion of  the  Constitution  as  the  supreme  law  of  the 
land,  and  upon  his  decisions  of  the  large  questions 


132  Story  of  the  Constitution 

that  arovse  out  of  the  complex  relations  of  the  States 
and  the  nation,  that  his  fame  must  rest.  To  ap- 
preciate fully  Marshall's  influence  upon  the  develop- 
ment of  the  Constitution,  we  must  remember  that  he 
dominated  the  Court  during  the  years  of  his  Chief 
Justiceship,  that  the  vast  majority  of  the  opinions 
upon  constitutional  questions  were  rendered  with  his 
sanction  and  support,  and  that  most  of  the  important 
opinions  were  written  by  him.^  Only  one  question 
of  importance  to  the  interpretation  of  the  Constitu- 
tion had  been  decided  previous  to  his  becoming  a 
member  of  the  Court.  This  was  the  case  of  Chis- 
holm  V.  Georgia,  in  which  Justice  Wilson  had  ex- 
pressed his  opinion  so  emphatically  that  the  Union 
was  a  nation,  sovereign  for  the  purposes  for  which 
it  had  been  created,  and,  within  its  sphere,  indepen- 
dent of  the  States.- 

The  first  task  of  Marshall  and  the  Court  was  to 
demonstrate  what  has  been  called  the  "  efficiency  " 
of  the  Constitution.-^  The  Constitution  had  nowhere 
expressly  conferred  upon  the  courts  the  power  to 
declare  a  law  unconstitutional,  and  at  the  February 
term  in  the  year  1800,  Mr.  Justice  Chase  had  said,  in 
the  case  of  Cooper  v.  Telfair : 

Although  it  is  alleged  that  all  acts  of  the  legislature, 
in  direct  opposition  to  the  prohibitions  of  the  Constitu- 

1  Constitutional  History  as  Seen  in  American  Law,  article  by- 
Hitchcock,  Constitutional  Developynent  in  the  United  States  as 
Influenced  by  Chief  Justice  Marshall,  p.  57.  This  is  an  ex- 
cellent work  to  which  I  am  much  indebted. 

2  2  Dallas,  419. 

3  Hitchcock,  op.  cit.,  p.  76. 


John  Marshall  133 

tion,  would  be  void,  yet  it  still  remains  a  question,  where 
the  poiccr  resides,  to  declare  it  void.^ 

Such  a  declaration  is  all  the  more  important  in 
view  of  the  Virginia  and  Kentucky  Resolutions  of 
1798-99,  which  declared  that  the  power  resided  in 
the  States,  the  parties  to  the  compact,  in  case  "  of  a 
deliberate,  palpable,  and  dangerous  exercise  of  other 
powers  not  granted  by  the  said  compact." 

It  seems  self-evident  to  us  that  this  power  should 
reside  in  the  courts,  that  it  should  be  their  duty  to 
declare  void  any  law  repugnant  to  the  Constitution, 
and,  in  doing  so,  to  judge  of  the  extent  of  the  powers 
delegated  to  the  Federal  Government;  but  in  the 
face  of  the  cry  that  this  would  make  the  discretion 
of  the  court  and  not  the  Constitution  the  measure 
of  those  powers,  neither  the  court  nor  the  country 
had  taken  the  position  that  the  Supreme  Court  must 
be  the  final  arbiter  in  the  event  of  a  conflict  between 
the  States  and  the  nation  over  the  extent  of  the 
delegated  powers.  This  position,  however,  Marshall 
assumed  in  the  case  of  Marbury  v.  Madison  in  1803.- 

Madison,  as  Secretary  of  State  under  Jefferson, 
refused  to  issue  to  one  William  Marbury  his  com- 
mission as  a  Justice  of  the  Peace  for  the  District 
of  Columbia,  although  the  facts  showed  that  Marbury 
had  been  nominated  to  the  Senate  by  President 
Adams,  that  the  nomination  had  been  confirmed  by 
the  Senate,  and  that  tlie  commission  had  been  signed 
and  sealed,  but  not  delivered  to  Marbury,  before  the 
administration  of  Adams  closed. 

14  Dallas,  19. 
2  1  Cranch,  137. 


134  Story  of  the  Constitution 

Marshall  delivered  the  opinion  of  the  Court  in  this 
important  case.  After  determining  that  the  appoint- 
ment was  complete  with  the  signing  and  sealing  of 
the  commission,  and  that  in  cousecjiience  Marbury 
had  a  right  to  the  office  and  a  remedy  for  his  ex- 
clusion, he  took  up  the  question  of  the  right  of  the 
Court  to  grant  the  remedy  prayed  for.  The  Con- 
stitution confers  upon  the  Supreme  Court  original 
jurisdiction  "  in  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  those  in 
which  a  State  shall  be  a  party."  ^  In  all  other  cases 
to  which  the  judicial  power  of  the  United  States  ex- 
tends, the  Supreme  Court  shall  have  appellate  juris- 
diction. Under  the  terms  of  the  Judiciary  Act,  the 
power  had  been  conferred  upon  the  Court  of  issuing 
a  mandamus,  the  remedy  sought  by  Marbury,  in  cases 
other  than  those  invojving  appellate  jurisdiction. 
Such  an  exercise  of  original  jurisdiction  had  not  been 
conferred  by  the  Constitution  and  the  question  of  the 
supremacy  of  the  Constitution  when  in  conflict  with 
an  ordinary  law  was  squarely  presented;  the  "ef- 
ficiency "  of  the  Constitution  was  to  be  tested. 

Marshall's  opinion  is  so  clear  and  convincing,  goes 
so  directly  to  the  heart  of  the  whole  matter,  and 
sets  forth  so  correctly  the  true  and  essential  nature 
of  a  written  and  "  rigid  "  Constitution  that  it  ought 
to  be  familiar  to  all.  Tlie  people,  said  Marshall, 
have  an  original  right  to  determine  such  principles 
for  their  government  as  in  their  opinion  shall  most 
conduce  to  their  own  happiness;  that  the  principles 
thus  established  are  fundamental  and  designed  to  be 
permanent;  that  the  original  and  supreme  will  of 

1  Art.  iii.,  Sec.  2. 


John  Marshall  135 

the  people  organizes  the  government,  distributes  and 
limits  the  powers  as  it  sees  tit,  and  commits  the  limi- 
tations to  writing.  The  government  of  the  United 
States  is  of  this  character. 

To  what  purpose  are  powers  limited,  and  to  what  pur- 
pose is  that  limitation  committed  to  writing,  if  those 
limits  may,  at  auy  time,  be  passed  by  those  intended  to 
be  restrained?  .  .  .  The  Constitution  is  either  a  superior 
paramount  law,  unchangeable  by  ordinary  means,  or  it 
is  on  a  level  with  ordinary  legislative  Acts,  and,  like  any 
other  Acts,  is  alterable  when  the  legislature  shall  please 
to  alter  it.  If  the  former  part  of  the  alterijative  be  true, 
then  a  legislative  Act  contrary  to  the  Constitution  is  not 
law;  if  the  latter  part  be  true,  then  written  constitutions 
are  absurd  attempts,  on  the  part  of  the  people,  to  limit 
a  power  in  its  own  nature  illimitable.  ...  It  is  emphati- 
cally the  province  and  duty  of  the  judicial  department 
to  say  what  the  law  is.  Those  who  apply  the  rule  to 
particular  cases  must  of  necessity  expound  and  interpret 
the  rule.  If  two  laws  conflict  with  each  other,  the  courts 
must  decide  on  the  operation  of  each.  .  .  .  This  is  of  the 
very  essence  of  judicial  duty.  If,  then,  the  courts  are 
to  regard  the  Constitution,  and  the  Constitution  is  su- 
perior to  any  ordinary  Act  of  the  legislature,  the  Con- 
stitution, and  not  such  ordinary  Act,  must  govern  the 
case  to  which  they  both  apply. 

Thus  the  "efficiency"  of  the  Constitution  w^as 
demonstrated.  The  power  of  the  Court  to  uphold 
the  supremacy  of  the  Constitution  and  to  restrain 
Congress  within  the  limits  set  by  that  instrument 
was  established.  The  importance  of  the  decision  can 
not  be  overestimated,  for  it  in  reality  determined  the 
nature  both  of  the  Const itntiou   and  of  the  Union; 


136  Story  of  the  Constitution 

it  confirmed  the  doctrine  of  the  limitation  of  the 
powers  of  the  Federal  Government  and  the  peculiar 
function  of  the  Supreme  Court  to  maintain  the  limi- 
tations set  by  the  Constitution ;  it  determined  where 
the  power  lay  to  declare  a  law  in  conflict  with  the 
Constitution  void.  While  it  denied  to  the  Federal 
Government  the  right  to  extend  its  powers  at  will, 
it  nevertheless  assumed  for  it  the  right,  through  one 
of  its  branches,  to  judge  of  the  extent  of  the  powers 
conferred  upon  it  by  the  Constitution.  The  Federal 
Government  was  one  of  limited  powers,  but  of  the 
limits  of  those  limits  it  itself  was  to  judge. 

The  decision  shows,  moreover,  very  clearly  that  it 
was  not  Marshall's  desire  to  exalt  the  Court  above 
the  other  departments;  he  states  as  explicitly  as 
could  be  desired  the  true  function  of  the  Court;  it 
cannot  out  of  the  fulness  of  its  power,  sit  in  judg- 
ment on  the  acts  of  Congress  and  declare  such  acts 
unconstitutional,  but  it  must  wait  till  the  individual 
case  is  brought  before  it;  its  decision,  then,  shall  be 
rendered  irrespective  of  the  law  in  violation  of  the 
Constitution.  Nor  has  it  any  intention  "  to  inter- 
meddle with  the  prerogatives  of  the  Executive  "  or 
to  consider  questions  which  involve  Executive  dis- 
cretion. "  There  exists  and  can  exist,"  says  Marshall 
in  this  same  decision,  "  no  power  to  control  that 
discretion.  The  subjects  are  political.  They  respect 
the  nation,  not  individual  rights ;  and  being  intrusted 
to  the  Executive,  the  decision  of  the  Executive  is 
conclusive."  Political  policies  have  never  been  made 
the  subject  of  judicial  decision  by  the  Court,  and  in 
this  recognition  of  the  limits  to  its  own  sphere,  it 
assured  itself  of  the  almost  unquestioned  support  of 


John  Marshall  137 

the  nation  in  that  ever  widening  field  of  true  judicial 
interpretation  that  lay  before  it.  Following  close 
upon  the  establishment  of  the  "  efficiency "  of  the 
Constitution,  came  a  second  problem  of  importance, 
that  of  the  "  extent "  of  the  judicial  power.^  "  The 
nation,  the  Constitution,  and  the  laws  were  in  their 
infancy,"  ^  and  the  great  question  was  whether  the 
system  would  work.  The  solution  of  this  ques- 
tion depended  in  large  measure  upon  the  success  of 
the  Judiciary  in  assuming  a  position  of  equality  to 
the  Executive  and  Congress  within  the  limits  of  the 
delegated  powers,  and  in  establishing  itself  above  all 
State  courts. 

How  the  former  w^as  attained  has  been  shown  in 
the  case  of  Marbury  v.  Madison.  The  contest  be- 
tween the  Federal  and  the  State  Judiciary  w^as  keen 
and  prolonged,  with  frequent  touches  of  bitterness 
and  violence.  For  a  decade  Marshall  was  at  war 
with  the  Supreme  Court  of  his  native  State,  and  the 
most  violent  opponent  of  his  efforts  to  secure  the 
supremacy  of  the  Federal  Supreme  Court  was  Judge 
Roane  of  the  Supreme  Court  of  Virginia.^  Roane 
W'as  dangerous  because  he  was  the  mouthpiece  of  the 
Democratic-Republicans  of  that  State.  Marshall  be- 
lieved that  "  the  whole  attack,  if  not  originating  with 
Mr.  Jefferson,"  was  "  obviously  approved  and  guided 
by  him,"  The  conflict  w  ith  the  Virginia  court  extended 
from  1813  to  1821  and  may  be  traced  in  three  of  Mar- 

1  Hitchcock,  op.  cit,  p.  82. 

-  Ibid.,  op.  cit,  p.  56.  Quotation  from  Chief  Justice 
Waite. 

^American  Historical  Review,  July,  1907:  Chief  Justice  Mar- 
shall and  Virginia,  by  William  E.  Dodd. 


138  Story  of  the  Constitution 

slialFs  decisions, — Martin  v.  Hunter's  Lessee  (1813),^ 
McCulloch  V.  Maryland  (1819),-  and  Cohens  v.  Vir- 
ginia (1821)/''  Its  heat  was  due  to  differences  of 
opinion  with  respect  not  only  to  the  legal  but  also 
to  the  political  questions  involved,  and  Virginia  Re- 
publicans did  not  hesitate  to  proclaim  Marshall  a 
traitor  to  his  State. 

In  the  first  case  an  appeal  was  taken  from  a  de- 
cision of  the  Virginia  court  to  the  United  States 
Supreme  Court  on  the  ground  that  rights  granted 
by  the  treaty  of  1783  had  been  denied,  and  the  de- 
cision of  the  Virginia  court  was  reversed.  Judge 
Roane  and  his  associates  formally  announced  that 
the  decision  of  the  United  States  Court  would  not 
be  obeyed.  Public  opinion  in  Virginia  fully  sus- 
tained the  local  court,  while  the  opinion  of  Judge 
Roane  was  a  political  manifesto  in  favor  of  State 
sovereignty.  The  Supreme  Court  at  once  took 
notice  of  the  refusal  of  the  Virginia  court;  the  case 
was  gone  over  again,  the  points  of  the  former  opin- 
ion were  reaffirmed,  and  the  United  States  marshal 
was  ordered  to  execute  the  decision  of  the  Supreme 
Court. 

The  contest  of  ideas  and  the  rivalry  of  men  was, 
however,  far  from  finished  with  the  settlement  of 
this  case.  In  1819  the  conflict  was  renewed  in  the 
case  of  McCulloch  v.  Maryland ;  once  again  Marshall 
and  Roane  were  antagonists.  In  this  case  the  doc- 
trine of  the  "  implied  powers "  of  tlie  Constitution 
was  accepted  by  the  Court,  its  right  to  determine  the 

1  1  Wheaton,  304. 
24  Wheaton,  316. 
3  6  Wheaton,  264. 


John  Marshall  139 

constitutionality  of  laws,  already  aflfirnied  in  the  case 
of  Marbury  v.  Madison,  was  reasserted,  and  the  ri^ht 
of  Congress  to  establish  a  National  l>auk  was 
settled.  To  Roane  the  exercise  of  such  power  by 
the  Court  was  a  usurpation.  In  a  series  of  papers 
contributed  to  the  Kichmond  Enquirer,  he  put  for- 
ward the  view  of  the  Virginia  and  Kentucky  Reso- 
lutions and  declared,  that,  if  Marshall's  view  pre- 
vailed, the  "  rights  and  freedom  of  the  people  of  the 
States  "  w^ere  lost  and  that  a  resort  to  force  might 
be  found  necessary. 

The  attention  of  the  public  was  soon  directed  else- 
where by  the  high-handed  proceedings  of  General 
Jackson  in  Florida,  and  upon  this  picturesque  figure 
the  fire  of  the  Virginia  malcontents  was  directed,  to 
the  relief  of  the  Supreme  Court. 

The  third  and  final  conflict  between  Marshall  and 
the  State  court  came  in  the  case  of  Cohens  v.  Vir- 
ginia. Of  the  opinion  it  has  been  said  that  no  other 
decision  "  affords  a  more  splendid  example  of  Mar- 
shall's intellectual  power,  his  profound  political  in- 
sight, or  his  unalterable  devotion  to  the  Union."  ^ 
The  questions  presented  to  the  Court,  said  Marshall, 
in  rendering  the  decision, 

maintain  that  the  nation  does  not  possess  a  depart- 
ment capable  of  restraining  peaceably,  and  by  au- 
thority of  law,  any  attempts  which  may  be  made,  by  a 
part,  against  the  legitimate  powers  of  the  whole;  and 
that  the  government  is  reduced  to  the  alternative  of 
submitting  to  such  attempts,  or  of  resisting  them  by 
force.  They  maintain  that  the  Constitution  of  the  United 
States  has  provided  no  tribunal  for  the  final  construc- 

1  Hitchcock,  op.  cit.,  p.  90. 


I40  Story  of  the  Constitution 

tion  of  itself,  or  of  the  laws  or  treaties  of  the  nation ; 
but  that  this  power  may  be  exercised  in  the  last  resort  by 
the  courts  of  every  State  in  the  Union.  That  the  Constitu- 
tion, laws,  and  treaties  may  receive  as  many  construc- 
tions as  there  are  States ;  and  that  this  is  not  a  mischief, 
or,  if  a  mischief,  is  irremedial. 

Again,  after  quoting  that  part  of  the  Constitution 
which  declares  that 

this  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made  or  which  shall  be  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land,  and 
the  judges  in  every  State  shall  be  bound  thereby,  any- 
thing in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding,^ 

the  Chief  Justice  continued  in  words  of  solemn  and 
convincing  import: 

This  is  the  authoritative  language  of  the  American 
people;  and,  if  gentlemen  please,  of  the  American  States. 
It  marks,  with  lines  too  strong  to  be  mistaken,  the  char- 
acteristic distinction  between  the  government  of  the 
Union  and  those  of  the  States.  The  general  government, 
though  limited  as  to  its  objects,  is  supreme  with  respect 
to  those  objects.  This  princii)le  is  a  part  of  the  Consti- 
tution; and  if  there  be  any  who  deny  its  necessity,  none 
can  deny  its  authority. 

The  people  made  the  Constitution,  and  the  people  can 
unmake  it.  It  is  the  creature  of  their  will,  and  lives  only 
by  their  will.  But  this  supreme  and  irresistible  power 
to  make  or  to  unmake  resides  only  in  the  whole  body  of 

1  Art.  vi. 


John  Marshall  141 

lUe  people;  not  in  any  subdivision  of  them.  The  attempt 
of  any  of  (he  parts  to  exei'cise  it  /.s-  ii.siirjxition,  and  ouyJit 
to  he  repelled  hy  those  to  tvhom  the  people  have  delegated 
their  power  of  repelling  it. 

Having  demonstrated  the  "  efficiency  "  and  the  "  ex- 
tent "  of  the  judicial  power,  having  established  the 
right  of  the  Court  to  disregard  a  law  repugnant  to 
the  Constitution,  having  maintained  its  supremacy 
in  all  matters  arising  out  of  the  Constitution,  and 
having  shown  its  power  to  uphold  the  Federal  au- 
thority, the  Court  had  yet  another  important  question 
to  settle  under  the  leadership  of  Marshall.  Though 
the  Constitution  enumerated,  it  did  not  define  the 
powers  which  it  granted  and  the  process  of  definition, 
as  Marshall  said,  "  is  perpetually  arising,  and  will 
T)robably  continue  to  arise  as  long  as  our  system 
shall  exist."  ^ 

The  enumeration  of  the  delegated  powers  closes 
with  the  statement  that  Congress  shall  have  power 
"  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Consti- 
tution in  the  Government  of  the  United  States,  or  in 
any  department  or  officer  thereof."  -  In  the  case  of 
the  United  States  v.  Fisher,^  in  1804,  Marshall  had 
laid  down  the  fundamental  principle  of  interpreta- 
tion when  he  said: 

In  construing  this  clause  it  would  be  incorrect,  and 
would  produce  endless  diflSculties,  if  the  opinion  should 

1  McCulloch  V.  Maryland,  4  Wheaton,  405. 

2  Art.  i.,  Sec.  8. 

3  2  Cranch,  358. 


142  Story  of  the  Constitution 

be  maintained  that  no  law  was  authorized  which  was 
not  indispensably  necessary  to  give  effect  to  a  specific 
power.  .  .  .  Congress  must  possess  the  choice  of  means, 
and  must  be  empowered  to  use  any  means  which  are  in 
fact  conducive  to  the  exercise  of  a  power  granted  by 
the  Constitution. 

Following  the  line  of  argument  developed  by 
Hamilton  in  bis  memorial  on  the  constitutionality 
of  a  National  Bank,  Marshall  gave  the  stamp  of 
judicial  approval  to  the  principle  of  "  implied 
powers "  as  contained  in  this  so-called  "  elastic 
clause  "  of  the  Constitution. 

The  same  question,  as  we  have  seen,  was  presented 
to  the  Court  in  1819  in  the  case  of  McCulloch  v. 
Maryland.  The  earlier  opinion  was  reaffirmed  in 
still  more  emphatic  language.  "  Let  the  end  be 
legitimate,"  said  Marshall,  "  let  it  be  within  the 
scope  of  the  Constitution,  and  all  means  which  are 
appropriate,  which  are  plainly  adapted  to  that  end, 
w^hich  are  not  prohibited,  but  consist  w  ith  the  letter 
and  spirit  of  the  Constitution,  are  constitutional."  ^ 

"  That  the  States  have  no  power,  by  taxation  or 
otherwise,  to  impede,  burden,  or  in  any  manner  con- 
trol any  means  or  measures  adopted  by  the  govern- 
ment for  the  execution  of  its  powders,"  ^  was 
established  in  this  as  well  as  in  subsequent  cases. 
The  Court  declared  "  that  tlie  pow-er  to  tax  involves 
the  power  to  destroy;  that  the  power  to  destroy  may 
defeat  and  render  useless  the  power  to  create."  ^ 
"The  question  is,  in  truth,  a  question  of  supremacy; 

1  4  Wheaton,  421. 

-  Hitchcock,  op.  cit.,  p.  94. 

^McCulloch  V.  Maryland,  4  Wheaton,  316,  431. 


John  Marshall  143 

and  if  the  right  of  I  lie  States  to  tax  the  means  em- 
ployed by  the  general  govenuneut  be  conceded,  the 
declaration  that  the  (.'onstilutioii,  and  tlie  laws  made 
in  pnrsnance  thereof,  shall  be  the  supreme  law  of 
the  land,  is  an  empty  and  unmeaning  declaration."  ^ 

Among  the  powers  delegated  to  Congress  was  that 
"  to  regulate  conmierce  with  foreign  nations  and 
among  the  several  States,  and  with  the  Indian 
tribes."  -  Out  of  this  clause  have  grown  all  the  at- 
tempts, recently  so  numerous,  by  legislation  and 
judicial  decision,  to  regulate  and  control  "  inter- 
state commerce."  Most  of  the  fundamental  prin- 
ciples which  have  governed  the  action  of  Congress 
and  the  courts  were  laid  down  by  Marshall.  We 
can  only  indicate  some  of  the  more  important.  In 
Gibbons  v.  Ogden  ^  it  was  determined  that  commerce 
was  not  merely  tratlfic  but  was  commercial  inter- 
course of  all  kinds;  that  it  included  navigation,  that 
the  power  vested  in  Congress  was  complete  and 
exclusive,  and  that  the  exercise  of  this  power  must 
extend  within  the  territorial  jurisdiction  of  the 
States,  and  "  must  include  every  case  of  commercial 
intercourse  which  is  not  a  part  of  the  purely  in- 
ternal commerce  of  a  single  State."  These  principles 
have  found  application  and  enlargement  in  a  host 
of  cases  from  that  day  to  this,  all  carrying  out  the 
fundamental  ideas  of  Marshall. 

Turning  to  the  express  limitations  put  upon  the 
power  of  the  States  by  the  Constitution,  we  find 
some  of  Marshall's   most   important  decisions,   par- 

^  McCulloch  V.  Maryland,  433, 

2  Const.,  Art.  i.,  Sec.  8. 

3  9  Wheaton,  189. 


144  Story  of  the  Constitution 

ticularly  those  involving  the  sanctity  of  contract. 
Most  notable  among  these  stands  the  Dartmouth 
College  case,  in  which  the  old  and  the  young  cham- 
pion of  national  strength  and  unity  won  added  fame. 
Marshall,  the  judge,  and  Webster,  the  advocate,  never 
showed  to  finer  advantage  their  faith  in  the  Consti- 
tution and  the  Union  than  in  this  case. 

Finally  it  remains  to  notice  a  decision  which  has 
been  of  the  utmost  consequence  in  the  history  of  our 
growth  as  a  nation  and  which  has  found  fresh  appli- 
cation in  the  past  ten  years  as  a  result  of  our  policy 
of  imperialism.  Jefferson,  it  is  well  known,  believed 
that  in  the  acquisition  of  Louisiana  he  "  had  done  an 
act  beyond  the  Constitution,"  and  he  went  so  far  as 
to  draft  an  amendment  to  the  Constitution  which 
provided  for  the  incorporation  of  the  new  territory 
in  the  United  States.  The  general  approval  with 
which  the  purchase  was  received  rendered  the  amend- 
ment unnecessary,  and  Congress  appropriated  the 
money  necessary  to  complete  the  transaction  and 
passed  all  laws  required  to  carry  the  treaty  into 
execution.  Twenty-five  years  later,  in  the  case  of  the 
American  Insurance  Co.  v.  Canter,*  in  which  the 
validity  and  the  effect  of  the  treaty  providing  for 
the  purchase  of  Florida  in  1819  were  called  in  ques- 
tion, Marshall  concluded  the  matter  so  far  as  judi- 
cial determination  was  concerned  in  the  followinir 
words :  "  The  Constitution  confers  absolutely  on 
the  government  of  the  Union  the  powers  of  making 
war  and  of  making  treaties;  consequently  that  gov- 
ernment possesses  the  power  of  acquiring  territory, 
either  by  conquest  or  by  treaty." 

1  1  Peters,  511. 


John  Marshall  145 

In  accordance  with  this  principle  we  have  seen 
our  power  stretch  far  beyond  our  shores  and  take 
possession  of  insular  territories;  it  has  made  it  pos- 
sible for  the  United  States  to  enter  upon  its  career 
of  expansion  and  in  consequence  to  take  its  place  as 
one  of  the  great  powers  of  the  world. 

When  Marshall  ascended  the  bench  as  Chief  Jus- 
tice of  the  United  States,  the  first  wave  of  reaction 
had  set  in  against  the  concentration  of  power  in  the 
Federal  Government.  Strength  and  power  had  been 
the  requisites  scarce  a  dozen  years  before  to  deliver 
the  country  from  anarchy,  but  now  they  seemed, 
to  the  reactionary  spirit,  destined  to  be  the  means 
of  subverting  liberty  and  establishing  monarchy  and 
tyranny,  and  under  the  party  cry  of  liberty  and  self- 
government  the  Democratic-Republicans  had  tri- 
umphed. When  Marshall  laid  down  the  ermine  along 
with  his  life,  the  country  was  just  beginning  to  wit- 
ness the  second  reaction  against  too  great  power  in 
the  central  government.  South  Carolina  and  Nulli- 
fication were  the  logical  successors  of  the  Virginia 
and  Kentucky  Resolutions;  Calhoun  and  the  Fort 
Hill  address,  of  Roane  and  the  Richmond  Enquirer. 

The  Federalist  principles  had  beyond  question  per- 
sisted in  the  interpretation  of  the  Constitution  at 
the  hands  of  the  Court  and  even  in  the  political 
branches  they  found  a  quiet  acceptance  in  practice. 
Had  not  the  baleful  influence  of  slavery  cast  its 
shadow  over  the  land  and  produced  a  "  peculiar  in- 
stitution," demanding  support  from  every  possible 
source,  even  from  the  Constitution  itself,  it  is  highly 
probable  that  the  great  work  of  Marshall,  in  estab- 
lishing the  national  principles  and  doctrines  of  the 


146  Story  of  the  Constitution 

Constitution,  Avould  Lave  sufficed  to  determine  for 
all  time  the  natui'e  of  the  Union.  Never  would  it 
have  been  necessary  to  draw  the  sword  in  final 
arbitrament. 


VII 

Andrew  Jackson.      Growth  through 
Democratization 


147 


ANDREW  JACKSON 

1767.  Mar.  15.  Born  near  boundary  line  between  North  and 
South  Carolina. 

Studied  law  in  Salisbury,  N.  C. 

Licensed  to  practise  law. 

District  Attorney  for  the  Mero  District. 

Delegate  to  State  Constitutional  Convention. 

First  Representative  in  Congress  from  Ten- 
nessee. 

Elected  to  U.  S.  Senate. 

Judge  of  Supreme  Court  of  Tennessee. 

Major-General  of  State  Militia. 

War  with  Creek  Indians. 

Appointed  Major-General  in  U.  S.  Army. 

Battle  of  New  Orleans. 

Took  personal  command  of  U.  S.  troops. 

Congress  sustains  his  action  in  Florida. 

U.  S.  Senator  from  Tennessee. 

Candidate  for  President. 

Resigned  from  Senate. 

Elected   President. 

Vetoed  Bill  rechartering  National  Bank, 

Re-elected   President. 

Nullification  Proclamation. 

Retired  from  public  life. 

Died  at  the  Hermitage. 


1784- 

■88. 

1788. 

1791. 

1796. 

1797. 

1798- 

1804. 

1801. 

1813- 

14. 

1814. 

May 

31. 

1815. 

Jan. 

8. 

1817. 

Dec. 

17. 

1819. 

Feb. 

8. 

1822. 

1824. 

1825. 

1828. 

1832. 

July. 
Nov. 
Dec. 

1837. 

1845. 

June 

8. 

148 


VII 

Andrew  Jackson.     Growth  through 
Democratization 

THE  success  of  democracy  in  tlie  election  of  Jeffer- 
son in  1800  was  only  partial.  It  meant  merely 
that  the  country  repudiated  the  extremes  to  wliicli 
the  Federalists  were  driving  the  national  develop- 
ment. A  desire  to  preserve  the  complete  indepen- 
dence of  local  self-government,  which  the  Democratic- 
Republicans  professed  to  believe  was  imperilled  by 
the  strengthening  of  the  central  government,  united 
with  the  carefully  cultivated  sentiment  that  the 
Federalists  were  monarcliists,  or  at  least  aristocrats, 
and  that  they  feared  and  distrusted  the  people,  gave 
to  the  movement  organized  bj^  Jefferson  the  sem- 
blance of  democracy.  To  the  extent  that  it  professed 
a  belief  in  the  wisdom  of  the  multitude  and  a  re%spect 
for  local  self-government  as  the  bulwark  of  liberty, 
it  was  more  democratic  than  its  opponent;  but  it 
would  be  a  great  mistake  to  imagine  that  its  profes- 
sions were  such  as  to-day  would  be  regarded  as  con- 
sistent with  thorough-going  democracy.  Jefferson's 
belief  in  the  people  had  back  of  it  always  the  sup- 
position that  the  people  would  be  wise  enough  to 
suffer  themselves  to  be  led  by  men  like  himself, — 
men  thoroughly  imbued  with  the  ideals  of  democracy, 
and  fitted  by  their  training  to  carry  them  out  far 

149 


150  Story  of  the  Constitution 

better  than  the  people  could  do  it  for  themselves. 
There  was  still  present  the  belief  in  the  superiority 
of  the  Virginia  Dynasty  as  the  people's  leaders. 

The  democracy  of  Jefferson,  moreover,  was  far 
removed  from  that  modern  tenet  of  the  faith  which 
demands  the  suffrage  as  the  inalienable  right  of  man. 
At  that  period  property  and  educational  qualifica- 
tions, not  inconsiderable  in  extent,  were  required 
almost  universally  both  for  office-holders  and  voters. 
The  democracy  was  in  reality  based  on  property,  and 
the  limited  body  thus  enfranchised  was  expected  to 
yield  itself  to  the  wisdom  of  approved  leaders.^ 

The  Jeffersonian  revolution  was  after  all  very 
limited  in  its  radicalism.  Yet  the  Federalists  dreaded 
its  weakening  effect  on  the  centralizing  tendencies 
of  the  Federal  Government.  Their  apprehension  on 
this  score  was  exceeded  by  their  fear  of  the  rule  of 
the  masses,  of  the  fickleness  and  passion  of  "  de- 
mocracies," and  of  those  characteristics  which  litera- 
ture had  made  classic  through  reference  to  the  Greek 
city-states  and  the  Italian  republics  as  models. 

None  of  their  fears  was  realized.  The  funda- 
mental principles  of  the  government  were  continued 
unchanged  by  the  Democratic-Republicans,  the  essen- 
tial character  of  the  Union  was  unassailed;  only  its 
tone  and  complexion  were  altered;  a  dull  gray  re- 
placed the  black;  expenditures  civil,  military,  and 
naval  were  cut  down,  but  Louisiana  was  purchased. 
Nor  did  passionate  and  hasty  democracy  sweep  away 
all  the  barriers  and  overleap  all  the  hindrances 
erected  in  the  Constitution  against  the  immediate 
triumph  of  the  popular  will ;  there  was  only  a  half- 

1  H.  J.  Ford,  Rise  and  Growth  of  American  Politics,  p.  132  ff. 


Andrew  Jackson  1 51 

hearted  attack  upon  the  Judiciary  as  the  bulwark 
of  a  defeated  party  against  the  complete  supremacy 
of  its  rival.  There  was  less  ceremony  and  more  of 
simplicity,  a  change  which  was  gTeatly  facilitated 
by  the  transfer  of  tlie  seat  of  government  from  the 
most  fashionable  city  of  the  Republic  to  the  dreary 
wastes  of  the  newly  laid-out  city  of  Washington.  Yet 
on  the  whole  things  moved  on  much  as  they  had  done 
before;  men  of  the  same  general  type  and  of  the 
same  general  social  position  continued  in  control. 
The  real  aristocracy  of  education  and  training  re- 
mained as  before  the  leaders  of  thought  and  action. 
Democracy  had  triumphed,  but  in  theory  rather  than 
in  practice;  and  another  generation  must  arise  under 
other  conditions  before  the  "  People "  should  come 
into  their  own. 

These  new  conditions  were  many,  but  none  of  them 
contributed  so  much  to  the  development  of  new  ideas 
in  respect  to  the  government  as  did  the  settling  of 
the  country  beyond  the  Alleghanies;  and  of  these 
new  conditions  and  new  theories  respecting  govern- 
ment, Andrew  Jackson  was  the  unconscious  embodi- 
ment. Born  in  1767,  so  near  the  border  line  between 
North  and  South  Carolina  that  his  most  exhaustive 
biographer  and  Jackson  himself  are  at  variance  as 
to  which  State  shall  have  the  honor  of  his  birth- 
place, he  was  early  made  to  feel  the  hardships  of 
the  War  for  Independence,  which  in  the  end  caused 
the  death  of  his  mother  and  his  two  brothers,  in- 
flicted upon  him,  child  though  he  was,  wounds  and 
imprisonment,  and  engendered  in  his  heart  a  fierce 
hatred  of  the  British  which  sought  and  won  its 
revenge  at  New  Orleans. 


152  Story  of  the  Constitution 

His  father,  a  Scotch-Irishman  from  Carrickfergus, 
County  Antrim,  Ireland,  who  had  come  over  in  1765, 
had  died  a  few  days  before  Jacli^son's  birth,  so  that 
the  close  of  the  Revolution  found  him  an  orphan, 
dependent  upon  his  mother's  relations.  His  train- 
ing was  that  of  the  frontier  settlement  and  his 
education  of  the  most  meagre  sort.^  The  stories  of 
his  early  years  give  little  promise  of  the  future ;  they 
show  a  dashing,  dare-devil  spirit,  with  little  of  serious 
purpose  and  less  of  serious  effort,  living  the  wild, 
free  life  of  an  outpost  of  civilization  where  sus- 
tenance was  easy  and  refinement  impossible.  In 
1784  he  began  the  study  of  law  at  Salisbury,  N.  C, 
but  even  then  life  did  not  become  too  serious.  He 
was  the  gayest  and  most  careless  of  all  the  young 
blades,  fond  of  horse-racing  and  cock-fighting  and 
spending  no  small  part  of  the  four  years  at  Salisbury 
in  these  pursuits. 

Admitted  to  the  bar  in  1788,  he  was  in  1791  ap- 
pointed District  Attorney  for  the  Mero  district,  com- 
prising the  settled  portions  of  North  Carolina  that 
lay  beyond  the  mountains.  The  eastern  part  of  this 
district  had  just  been  through  the  anarchy  of  the 
abortive  efforts  to  establish  the  "  State  of  Franklin," 
and  the  western  portion,  reaching  as  far  as  Nash- 
ville, was  suffering  from  almost  daily  attacks  by 
the  lurking  savages.  Many  settlers  everywhere 
along  the  Western  boundary  of  civilization,  as 
it    slowly    pushed     its    way    toward    the     Pacific, 

1  Lives  by  Parton,  Sumner,  Buell,  and  Colyar.  Also  see 
C.  H.  Peck,  The  Jacksoniayi  Epoch;  W.  MacDonald,  The  Jack- 
sonian  Democracy,  and  C.  E.  Merriam,  American  Political 
Theories. 


Andrew  Jackson  153 

degeuerated  into  a  condition  not  far  removed  from 
that  of  the  savage.  The  restraints  of  civilization 
became  unbearable  and,  like  the  deer  and  the  Indians, 
they  kept  just  ahead  of  tlie  advancing  line  of  settle- 
ment.^ In  such  a  community  Andrew  Jackson  be- 
gan his  career  as  an  officer  of  the  State ;  he  performed 
his  duties  fearlessly,  if  not  always  with  wisdom,  and 
in  1790  he  was  elected  the  first  Representative  from 
the  new  State  of  Tennessee.  A  year  later  he  was 
appointed  Senator  to  succeed  Blount  who  had  been 
expelled.  His  career  as  a  Senator  was  of  short 
duration,  for  he  resigned  his  seat  in  1798  and  in 
the  same  year  was  made  "  Judge  of  the  Superior 
Courts  "  of  Tennessee. 

A  man  less  suited  for  the  position  in  an  older 
civilization  can  scarcely  be  imagined.  Yet  there 
were  no  serious  complaints  against  his  decisions. 
Force  of  will  and  violence  of  temper  commanded 
respect  in  a  society  where  the  restrictions  of  law 
weighed  lightly,  where  the  security  of  life  and  prop- 
erty were  less  dependent  on  law  than  on  individual 
effort,  and  where  the  code  of  honor  found  imitation 
and  reproduction  in  a  travesty  of  the  original. 

Jackson  ended  his  services  on  the  bench  in  1804. 
By  this  time  he  had  firmly  established  himself  in  the 
raw  community  as  a  man  who  could  and  would  do 
things,  without  fear  either  of  individuals  or  of  so- 
ciety; he  had  fought  his  duels,  raced  his  horses,  and 
matched  his  game-cocks ;  he  had  married  a  lady  with- 
out observing  proper  care  in  determining  whether 
she  had  been  legally  divorced,  and  had  thereby  laid 
up  for  himself  a  wealth  of  slander  and  heart-burn- 

1  Sumner   (ed.  of  1899),  p.  6  ff. 


154  Story  of  the  Constitution 

ing  for  the  future;  be  was  tlioroughly  representative 
of  the  crude  life  of  the  times  in  that  section,  both 
in  his  social  and  political  ideals  and  relations.  He 
had  been  charmed  by  Burr,  tlie  fallen  idol  of  de- 
mocracy, and  had  been  enlisted  in  assisting  his 
preparations  till  suspicion  of  their  treasonable  intent 
was  aroused;  at  the  time  of  the  trial,  to  which  he 
had  been  summoned  as  a  witness,  he  delivered  a 
public  harangue  in  defence  of  Burr  and  in  derogation 
of  General  Wilkinson.  This  course  of  conduct  meant 
that  he  was  deeply  alive  to  the  importance  of  the 
Mississippi,  as  was  all  the  Southwest,  and  as  deeply 
in  sympathy  with  all  efforts  to  unite  Louisiana  more 
closely  to  the  Union,  and  that  the  name  of  democracy 
Avas  sweet  to  his  ears.  But  to  him  democracy  meant 
something  very  different  from  what  it  meant  to  men 
of  the  Democratic-Republican  school  of  the  more 
populous  States  along  the  coast.  The  free  life  of 
the  Southwest  afforded  no  suitable  atmosphere  in 
which  to  hedge  democracy  about  with  checks  and 
chains.  Rather  did  it  afford  almost  perfect  condi- 
tions for  the  development  of  ideas  of  complete  local 
self-government  and  equality  with  respect  to  the 
participators  in  it.  Small  and  infrequent  was  the  as- 
sistance rendered  any  political  community  by  a  larger 
and  superior  community ;  the  smaller  desired  nothing 
from  the  larger,  and  independence  of  external  con- 
trol was  regarded  as  a  matter  of  course  and  of  right. 
In  a  society  dependent  upon  itself  for  the  food  it 
eats,  the  clothes  it  wears,  and  tlie  implements  and 
utensils  which  its  civilization  demands,  there  was 
small  chance  for  the  devph)])ment  of  sharply  marked 
classes,  or  for  social  and  political  distinctions.     The 


Andrew  Jackson  155 

riglit  to  vote  was  regarded  as  inherent  in  every  free 
white  man,  and  the  ability  to  fill  a  political  office 
as  commensurate  witli  the  right  to  vote.  In  a  self- 
reliant  and  self-assertive  social  life,  where  complex 
political  problems  were  unknown,  and  where  the  ad- 
ministration of  a  rude  system  of  justice  and  taxation 
ccmstituted  the  bulk  of  political  activity,  it  was  nat- 
ural that  any  ordinary  man  should  be  regarded  as 
fit  for  the  position,  and  that  such  positions  should 
rotate  from  one  member  of  the  community  to  another, 
that  as  many  as  possible  might  enjoy  the  social  dis- 
tinction and  emoluments.  Rotation  in  office,  short 
terms,  equality  in  ability  to  fill  the  offices,  and  uni- 
versal suffrage  were  the  commonplaces  of  political 
thought  in  the  Tennessee  of  Jackson's  earlier  life, 
and  he  himself  the  embodiment  of  these  principles.^ 

It  is  important  to  gather  some  impression  of  the 
general  conditions  under  which  Jackson  grew  up, 
and  to  perceive  what  were  the  forces  at  work  upon 
him  and  the  Western  country,  for  his  place  in  our 
constitutional  development  is  due  to  the  influence 
he  exerted  upon  the  spirit  of  the  government,  and 
to  the  principles  of  administration  that  he  introduced 
into  it.  He  placed  upon  it  the  distinctive  character 
of  his  own  thought  and  feelings.  Not  a  word  of  the 
Constitution  did  he  change,  and  but  one  new  idea 
of  constitutional  law  did  he  advance,  and  yet  his 
administrations  mark  a  turning-point  in  the  develop- 
ment of  our  institutions.  He  infused  into  them  the 
spirit  and  practices  of  real  democracy,  the  ideals  of 
equality,  of  the  supremacy  of  the  people,  and  of  rota- 
tion   in    office,    and   finally   he   introduced   into   the 

1  Merriam,  op.  cit.,  p.  176  ff. 


156  Story  of  the  Constitution 

national  administration  the  most  vicious  of  our  po- 
litical evils,  the  "  spoils  system."  ^  Not  less  pro- 
nounced was  the  lofty  position  of  supremacy  over 
the  other  departments  of  government  to  which  he 
raised  the  Executive,  but  this  elevation  was  personal 
and  transitory  and  was  due  to  the  indomitable  will 
of  the  "  old  Hero,"  not  to  any  lasting  forces. 

Retiring  from  the  bench  in  1804  Jackson  became 
a  merchant  and  farmer  and  bade  fair  to  spend  the 
remainder  of  his  life  as  an  inconspicuous  member  of 
society.  Chance  saved  him,  for  having  been  elected 
Major-General  of  tlie  State  Militia  in  ISOl,  the  Creek 
war  gave  tlie  first  opportunity  for  the  display  of 
those  military  talents  which  carried  him  steadily 
forward  to  tlie  battle  of  New  Orleans  and  eventually 
to  the  Presidency.  Jackson's  military  career  in- 
terests us  only  in  so  far  as  it  brought  into  display 
the  perseverance  and  iron  will  of  the  man.  His  own 
sickness  and  the  wretched  support  given  by  the  gov- 
ernment could  not  baffle  or  discourage  him;  in  the 
face  of  almost  insuperable  difficulties  he  held  his 
steady  course  toward  the  goal;  his  imperious  nature 
refused  to  acknowledge  defeat  either  at  the  hands  of 
nature  or  of  superior  numbers.  His  qualities  of 
leadership  won  the  unfaltering  allegiance  of  his 
soldiers,  and  the  victory  over  Pakenhain  placed  him 
among  the  notable  figures  of  the  country.  Made  a 
Major-General  in  the  regular  army,  he  undertook  in 
1818  the  war  against  the  Seminoles  and,  disregardful 
of  international  amenities,  he  invaded  Spanish  terri- 
tory and  hung  British  subjects. 

'  Cf.   MacDonald,  op.  cit,  p.   56   ff,   and   Sumner,  op.  cit.,  p. 
187  ff. 


Andrew  Jackson  157 

From  1810  his  political  reputation  grew  apace 
through  the  skilful  iiiaiiagemeiit  of  that  master  wire- 
puller, William  B.  Lewis,  and  his  availability  as  a 
presidential  candidate  to  succeed  jMonroe  was  care- 
fully cultivated.  The  "  Era  of  Good  Feeling"  under 
Monroe  had  produced  a  partyless  condition  of  fac- 
tional fights  among  the  leaders.  Clay,  Crawford, 
Calhoun,  Jackson,  and  John  Quincy  Adams  divided 
the  hosts  among  them.^  Calhoun  succeeded  in  com- 
bining the  opposing  forces  upon  himself  for  Vice- 
President,  and  of  the  others,  Jackson,  as  the  candidate 
of  the  People,  received  the  largest  number  of  elec- 
toral votes,  but  not  a  majority  of  all.  The  election 
was  therefore  thrown  into  the  House  of  Represen- 
tatives, where  Clay's  overwhelming  influence  was 
turned  to  Adams  and  the  cry  of  "  bargain  and  corrup- 
tion "  arose,  to  pursue  Clay  with  deadly  effect  for 
the  remainder  of  his  life.^  Jackson  had  at  first 
protested  against  his  name  being  presented  as  a  can- 
didate on  the  ground  of  his  age,  but  having  been 
defeated  by  unfair  means,  as  it  seemed  to  him,  al- 
though he  had  the  largest  electoral  and  popular  vote, 
his  whole  being  was  fired  with  a  desire  to  be  re- 
venged upon  his  enemies,  and  the  "  Jackson  men  " 
became  a  party  seeking  to  right  a  wrong  that  had 
been  done  him  and  the  people. 

At  the  same  time  parties  were  beginning  to  re- 
shape themselves  out  of  the  personal  factions,  and 
the  Jackson  men,  claiming  to  be  the  lawful  heirs  and 
successors  of  the  true  Jeffersonian  principles,  ap- 
propriated the  name  of  Democrats.     Jackson's  nomi- 

1  Cf.  Sumner,  op.  cit.,  p.  92  if. 

-  Cf.  Schurz,  Life  of  Henry  Clay,  \.,  254  ff. 


15S  Story  of  the  Constitution 

uation  and  electiou  in  1828  were  marked  by  a  variety 
of  innovations  in  political  life.  In  the  first  place,  tlie 
Congressional  Caucus  as  a  nominating  agency  passed 
out  of  existence  with  the  nomination  of  Crawford  in 
1824.  It  had  already  fallen  into  disrepute  as  an 
undemocratic  institution  which  deprived  the  people 
of  their  free  choice  of  a  Chief  Magistrate.  Jackson's 
first  nomination  was  made  by  the  legislatures  of  his 
own  and  of  other  States,  and  by  popular  assemblies 
everywhere.  His  second  nomination  was  so  well  as- 
sured as  to  be  unnecessary,  but  his  opponents,  who 
had  by  this  time  become  consolidated  under  the 
leadership  of  Clay,  held  a  national  nominating  con- 
vention which  has  grown  into  the  highly  developed 
modern  organization  for  that  purpose.^ 

The  election  of  Jackson  brought  far  reaching 
changes  in  the  whole  atmosphere  of  government,  the 
effects  of  which  we  still  feel.  It  was  hailed  as  the 
triumph  of  the  People;  at  last  they  had  come  into 
their  own,  and  the  smallest  remnants  of  opposition 
to  the  reign  of  the  popular  sovereign  were  to  be  swept 
away  forthwith.  Jackson  regarded  himself  as  pecul- 
iarly the  representative  of  the  people  and  their  wishes, 
and  the  idea  grew  upon  him  with  the  successive 
years  of  his  Presidency.  Through  him  the  people 
had  spoken  in  unmistakable  fashion  and  therefore 
his  wishes  must  prevail.  Before  him  in  this  repre- 
sentative capacity  the  other  branches  of  government 
must  give  way.  The  Executive,  to  his  mind,  in- 
corporated the  highest  expression  of  the  will  of  the 
people  and  that  will  must  be  obeyed.     It  was  a  con- 

1  Cf.  Ostrogorski,  Democracy  and  the  Organization  of  Political 
Parties,  ii.,  1-207. 


Andrew  Jackson  159 

ception  lliaf  fitted  in  well  with  the  domineering 
temper  and  (jualitj  of  his  own  mind. 

The  democratic  simplicity  of  the  traditional  Jeffer- 
son, I'idinj;'  alone  to  the  Capitol  and  hitching  his 
horse  outside  while  he  went  in  to  take  the  oath  of 
otirtce,  is  i)ar()(lied  in  the  gaping  multitudes  who 
crowded  into  the  city  and  into  the  White  House  with 
the  hold  air  of  owuershi])  when  Jackson  came  into 
power.  Through  four  years  the  "  people  "  had  been 
cajoled  into  believing  themselves  the  victims  of  an 
infamous  plot  of  their  enemies  to  keep  them  out  of 
that  control  of  the  government  which  was  their  due. 
The  necessary  counterpart  of  such  teaching  was  the 
prospect  that,  with  Jackson's  election,  everything 
would  be  turned  over  into  their  hands,  and  in  a 
vague  sort  of  way  the  ignorant  multitude  fore- 
shadowed to  itself  some  direct  pecuniary  benefit  from 
the  success  that  had  been  won.  Filled  with  such 
ideas,  the  common  people  poured  into  Washington 
to  see  and  touch  and  handle  that  which  had  come 
into  their  possession.^  Their  numbers  were  swelled 
by  the  great  crowd  of  hungry  office-seekers  who,  from 
every  quarter  of  the  country  but  chiefly  from  the 
South  and  West,  came  clamoring  for  the  rewards 
that  had  been  dangled  before  their  eyes  during  the 
campaign.  The  more  refined  elements  of  society 
looked  on  aghast  and  affrighted  at  the  mob  in 
homespun,  with  a  hot-tempered,  passionate,  and  at 
times  lawless  military  hero  as  their  leader,  and 
feared  for  the  safety  of  property  and  republican 
government. 

The  political  ideals  of  the  newly  settled  West  had 

1  Cf.  MacDonald,  op.  cit.,  p.  43  ff. 


i6o  Story  of  the  Constitution 

triumphed  over  the  more  conservative  elements  of 
the  East.  Democracy  in  practice  as  well  as  in  prin- 
ciple was  seeking  realization,  and  in  Jackson  it  had 
found  the  man  fitted  above  all  others  to  effect  the 
desired  result.  He  was  of  humble  birth  and  circum- 
stances; he  had  risen  by  his  own  strength  and  owed 
his  success  to  no  fortuitous  circumstances.  Brave, 
determined,  self-willed,  passionate  in  hatred  and  in 
friendship,  making  every  difference  of  view  assume 
the  attitude  of  personal  opposition,  neglectful  of  law 
if  it  stood  in  the  way  of  his  desires,  he  was  yet 
honest,  sincere,  and  fervently  patriotic,  and  furnished 
the  great  unthinking  masses  a  hero  whom  they  could 
worship,  not  as  they  had  worshipped  "  the  Sage  of 
Monticello,"  afar  off  for  his  wisdom,  but  as  "  the  old 
Hero  "  of  the  Hermitage,  for  his  honesty.  The  peo- 
ple trusted  him  and,  backed  by  their  trust  and  re- 
liance, he  worked  the  third  revolution  in  our  history. 
Jackson,  no  less  than  Jefferson,  was  brought  into 
office  on  an  anti-Hamilton  platform,  though  it  was 
not  so  called.  The  Federalists  as  a  party  had  dis- 
appeared and  more  than  twenty  years  before,  J.  Q. 
Adams  had  joined  the  Democratic-Republicans,  but 
the  anti-Jackson  men,  the  men  whom  Clay  led,  and 
the  Adams  administration  stood  for  the  same  gen- 
eral principles  and  policies  that  had  characterized 
Hamilton. 

Jackson's  fiercest  fight  was  against  the  Bank  of 
the  United  States;  not  the  original  bank  whose 
legality  Hamilton  had  so  warmly  defended  and 
Jefferson  as  warmly  attacked,  but  another  on  the 
same  plan  that  the  Democratic-Republicans  had  been 
forced  to  charter  in  1816.     Jackson's  second  admini- 


Andrew  Jackson  i6i 

stration  became  on  the  surface  almost  a  fight  between 
the  classes,  a  fight  between  the  rich  and  the  poor. 
Certain  it  is  that  the  body  of  the  people  was  made 
to  feel  that  it  was  a  death  struggle  with  the  money- 
power  which  had  not  yet  acquired  the  title  of  Wall 
Street;  that  unless  "  Nick"  Biddle  and  his  infamous 
institution  were  destroyed,  the  national  life  would 
be  corrupted  beyond  hope  and  republican  government 
would  disappear,  a  prey  to  plutocracy.  Against  this 
dreadful  calamity  it  was  every  plain  man's  duty  to 
take  his  stand  behind  the  banner  of  General  Jackson.^ 
That  facts  are  stranger  than  fiction  is  perhaps  more 
often  illustrated  in  politics  than  elsewhere.  Jack- 
son, heralded  and  fought  for  as  the  saviour  of  the 
country,  proclaimed  as  the  one  man  capable  of  con- 
tending successfully  with  the  corruption  in  the  gov- 
ernment, and  himself  convinced  of  his  mission,  did 
more  to  degrade  and  corrupt  and  pollute  our  political 
life  than  any  man  before  or  since.  Honest  beyond 
all  question,  he  made  possible  the  greatest  dishonesty 
and  incompetency.  Such  an  unlooked-for  and  un- 
happy result  followed  hard  upon  the  practice  of  re- 
warding party  services  with  public  places.  Jackson 
was  not  the  inventor  of  the  spoils  system;  it  had 
already  been  tried  with  success  in  the  States  and  he 
merely  introduced  it  into  our  national  life.  Much 
as  Jackson's  own  personality  tended  to  strengthen 
the  Executive,  the  patronage  much  more  increased  his 
power  but  only  as  a  member  of  a  party;  it  decreased 
his  efficiency  and  destroyed  his  disinterested  position. 
The  President  could  no  longer  pretend  to  follow  the 
example  of  Washington  and  be  the  impartial  Presi- 
1  Cf.  Sumner,  op.  cit.,  chaps,  viii.,  x.,  and  xi. 


i62  Story  of  the  Constitution 

(lent  of  the  whole  coimtrj.      He  became  more  and 
more  the  head  of  a  party. 

The  forces  of  democracy  had  been  steadily  gather- 
ing strength  since  the  close  of  the  Revolution  and 
we  may  congratulate  ourselves  that  the  way  had  been 
prepared  for  their  peaceful  introduction.  The  in- 
fluence of  Jackson  upon  our  national  life  was,  how- 
ever, far  from  being  altogether  bad.  His  ideals  were 
not  less  far  removed  from  those  of  Jefferson  than 
they  were  from  that  extreme  section  of  the  Demo- 
cratic party  which  was  beginning  to  identify  local 
self-government  with  the  protection  of  slavery.  Jack- 
son and  Calhoun  soon  found  themselves  widely  sepa- 
rated on  the  question  of  the  nature  of  the  Union. 
With  Jackson,  to  be  sure,  the  attempt  of  South 
Carolina  to  nullify  a  law  of  the  Federal  Government 
had  the  appearance  very  largely  of  an  attempt  to 
defy  his  own  authority,  to  thwart  him  personally. 
His  defence  of  the  Union  assumed  to  a  measurable 
degree  the  appearance  of  a  defence  of  his  position  as 
Chief  Executive,  and  his  toast  "'  The  Union,  it  must 
be  preserved !  "  rang  both  witli  patriotism  and  per- 
sonal feeling.  His  f)roclamation  ^  of  December  10, 
1832,  asserted  a  doctrine  of  national  supremacy 
which  brought  consternation  to  the  Nullifiers,  who 
trusted  to  his  Southern  sympathies  to  incline  him 
in  their  favor.-  There  was  no  doubt  in  his  mind  of 
the  right  or  of  the  power  of  the  Federal  Government 
to  maintain  itself  against  the  spirit  of  disunion,  and 
he  challenged  in  sliarpest  terms  tlio  upliolders  of  the 
heresy  of  Nullification.    The  whole  power  of  the  gov- 

1  For  the  text  of  Jackson's  Proclamation  see  the  Appendix. 

2  Cf,  Sumner,  op.  cit.,  chaps,  ix.  and  x. 


Andrew  Jackson  163 

ernnu'iil  was  to  be  put  in  iiiolion  to  secure  tlie  en- 
foi'fenieut  of  the  laws,  should  resistauee  by  force  be 
tried. 

Difficult  as  it  may  be  to  speculate  with  accuracy 
upou  what  niifi'ht  have  been,  it  would  seem  in  this 
case  safe  to  believe  that  had  Jackson  refused  to  en- 
tertain the  idea  of  a  compromise,  had  he  joined  with 
Webster  in  the  belief  that  now  was  the  time  to  test 
the  strength  of  the  Federal  Government,^  the  terrible 
conflict  of  the  Civil  War  might  possibly  have  been 
averted.  No  other  State  stood  ready  to  join  South 
Carolina  in  1832  in  a  movement  to  withdraw  from 
the  Union.  The  South  had  not  yet  been  set  apart 
in  thought  and  feeling  from  the  rest  of  the  country; 
it  had  not  3^et  been  made  to  feel  its  own  homogeneity 
and  the  need  of  concerted  action  in  defence  of  its 
j)eculiar  labor.  Had  the  precedent  been  set  in  1832 
of  vigorous  action  against  all  efforts  to  dissolve  the 
Union,  there  would  have  been  no  excuse  for  the  feeble 
admission  of  1860  that,  though  there  was  no  right 
of  Secession,  the  Federal  Government  was  never- 
theless lacking  in  all  constitutional  means  to  main- 
tain its  own  existence  against  the  unlawful  attempt 
of  a  State  to  withdraw. ^  Had  force  been  used  against 
South  Carolina  in  1832,  there  is  little  likelihood  that 
it  would  have  been  necessary  against  elev^en  States 
in  1861.  Yet  it  must  ever  remain  to  Jackson's  credit 
that  he  sounded  the  true  note  of  national  supremacy 
and  gave  support  to  a  growing  sentiment  that  from 
1861  to  1865  became  supreme. 

1  Cf.  Lodge's  Daniel  Webster,  p.  222. 

2  Cf.  President  Buchanan's  message  of  December,  1860,  Mes- 
sages and  Papers  of  the  Presidents,  v.,  635  ff. 


1 64  Story  of  the  Constitution 

Reference  has  already  been  made  to  Jackson's  at- 
titude toward  the  other  branches  of  tlie  government. 
He  considered  himself  in  a  very  special  sense  the 
direct  representative  of  the  people's  wishes,  and 
the  courts,  no  less  than  Congress,  were  made  to  feel 
the  force  of  Executive  independence.  John  Marshall 
still  presided  over  the  Supreme  Court  during  most  of 
the  years  of  Jackson's  administrations;  he  typified  the 
extremest  form  of  the  anti-democratic  tendencies  and 
was  therefore  highly  objectionable  to  Jackson.  But 
aside  from  personal  antipathy  and  political  creed, 
Jackson  could  not  brook  any  interference  with  the 
triumphant  progress  of  democracy  as  embodied  in 
himself  and  his  position.  He  claimed,  therefore,  an 
equal  right  with  the  Supreme  Court  to  judge  of  the 
constitutionality  of  laws.  Had  he  not  sworn  to  sup- 
port the  Constitution,  and  was  it  not  his  duty  to  sup- 
port it  as  he  understood  it?  That  the  President  has 
a  right  to  pass  an  opinion  upon  the  constitutionality 
of  a  bill  presented  for  his  signature  is  unquestioned, 
but  when  a  law  has  been  definitely  settled  through 
years  of  practice  and  repeated  decisions,  it  is  no 
longer  within  the  province  of  the  Chief  Executive 
to  pass  judgment.  Jackson,  then,  must  be  con- 
demned for  his  violent  assumption  of  the  unconsti- 
tutionality of  the  Bank,  and  his  attacks  upon  the 
institution  from  this  standpoint  were  unwarranted. 
Still  more  is  his  attitude  toward  the  Court  in  the 
case  of  the  Cherokee  Nation  v.  the  State  of  Georgia 
to  be  condemned.^  The  chief  value  of  the  Court  lies 
in  the  fact  that,  as  Hamilton  said,  it  is  will,  not 
force.     This  is  at  once  its  strength  and  its  weakness, 

iC/.  J.  W.  Burgess,  The  Middle  Period,  p.  220  ff. 


Andrew  Jackson  165 

and  unless  tlie  Executive  power  of  the  government 
be  used  unreservedly  in  its  support,  it  must  in- 
evitably fall  into  disrepute  and  lose  its  independence. 
No  more  destructive  principle  could  have  found  ex- 
pression on  Jackson's  lips  than  that  contained  in  his 
famous  remark  with  reference  to  this  case:  "John 
Marshall  has  made  his  decision ;  now  let  him  enforce 
it."  ^  To  carry  out  such  a  policy  consistently  would 
utterly  overthrow  the  system  of  checks  and  balances 
so  carefully  devised  by  the  separation  of  the  powers 
of  government  and  reduce  the  courts  to  a  position 
of  subserviency  to  the  Executive.  Fortunately  it  is 
a  principle  which  has  not  found  imitation  among 
Jackson's  successors. 

With  Jackson's  retirement  from  the  Presidency,  the 
balance  that  had  been  disturbed  by  his  personal  char- 
acter was  restored  and  the  Executive  power  sank  back 
into  its  normal  position.  The  forces  of  democracy, 
however,  had  come  to  stay  and,  while  the  rawness  of 
methods  and  of  individuals  gradually  disappeared, 
the  principles  of  political  equality  as  manifested  in 
the  suffrage  and  the  civil  service  continued  in  un- 
diminished strength. 

1  Horace  Greeley,  The  American  Conflict,  1.,  106. 


VIII 

Daniel  Webster.      Growth   through 
Rising  National  Sentiment 


167 


DANIEL  WEBSTER 


1782. 

Jan. 

18. 

Born  in  Salisbury,  N.  H. 

1797- 

1801. 

At     Dartmouth     College.      Taught    school     i 
Maine. 

1805. 

Admitted  to  Bar. 

1812. 

Opposed  War  of  1812. 

1813. 

Representative  in  13th  Congress. 

1814. 

Re-elected  to  Congress. 

1816. 

Moved  to  Boston. 

1818. 

Dartmouth  College  Case. 

1820. 

Member  of  State  Convention. 

1823- 

27. 

Member  of  Congress.     Opposed  tariff  of  1824. 

1827. 

Elected  U.  S.  Senator. 

1828. 

Voted  for  "  Tariff  of  Abominations." 

1830. 

Jan. 

20  and  26.     Replies  to  Hayne. 

1833. 

Re-elected  U.  S.  Senator. 

Feb. 

16. 

Replied   to    Calhoun. 

1839. 

Re-elected  to  Senate. 

1841. 

Resigned  from  Senate. 
Appointed  Secretary  of  State. 

1843. 

Resigned, 

1845. 

Elected  to  Senate. 

1850. 

Secretary  of  State. 

1852. 

Oct. 

24. 

Died  at  Marshfield,  Mass. 

i68 


VIII 

Daniel  Webster.     Growth  through  Rising 
National  Sentiment 

WEBSTER  was  born  iu  a  small  New  Hampshire 
village  on  January  18,  1782;  he  was,  there- 
fore, seven  years  old  at  the  time  of  the  adoption  of 
the  Constitution.  So  intimately  is  his  name  asso- 
ciated with  this  document  that  it  is  pleasing  to  think 
that  the  whole  of  his  responsible  existence  was  spent 
under  it.  He  belonged  to  the  first  generation  of 
Americans  who  knew  no  other  form  of  government 
than  that  established  by  the  present  Constitution. 
He  felt  himself  to  be  a  citizen  of  the  Union,  not  of 
the  America  of  the  Revolution.  It  was  a  generation 
that  had  not  felt  the  evils  of  a  loose  Confederacy, 
nor  the  full  force  of  State  pride  and  State  patriotism ; 
it  could  not  recall  the  conflicting  opinions  and  the 
resultant  compromises  of  the  Philadelphia  Conven- 
tion. It  knew  that  Union  meant  prosperity  and  it 
found  in  the  Constitution  both  the  cause  and  the 
justification  of  the  Union.  Webster's  generation  was 
reared  in  that  era  when  men,  no  matter  how  widely 
they  might  differ  in  their  views  of  the  Constitution, 
were  a  unit  in  their  devotion  and  loyalty  to  the  in- 

169 


lyo  Story  of  the  Constitution 

strument  itself.  It  was  nourished  on  that  almost 
blind  worship  of  the  Constitution  which  followed  so 
quickly  after  its  adoption  by  all  the  States.  North 
and  South  alike  felt  the  force  of  the  rising  national 
sentiment;  South  Carolina  no  less  than  Massa- 
chusetts, offered  homage  at  the  shrine  of  the  Con- 
stitution. Federalist  and  Republican  could  unite  in 
a  self-sufficing  admiration  of  the  new  form  of  gov- 
ernment, for  after  it  was  adopted,  the  fight  was 
thenceforth  within  the  Constitution. 

Such  at  least  was  the  case  in  Webster's  early  years ; 
not  until  he  was  well  into  middle  life  did  South  Caro- 
lina proclaim  Nullification,  yet  even  then  protesting 
tliat  such  a  measure  was  constitutional  and  consis- 
tent with  the  retentiou  of  its  place  within  the  Union. 
Death  mercifully  came  to  him  nine  years  before 
Soutli  Carolina  led  the  way  of  Secession  out  of  the 
Union,  to  maintain  which  he  had  given  freely  and 
fully  of  Ills  wonderful  gifts  of  intellect  and  oratory 
his  whole  life  long. 

In  estimating  Webster's  influence  upon  the  devel- 
opment of  our  Constitution,  it  may  be  helpful  to 
sketch  briefly  the  course  of  a  few  of  the  most  im- 
portant events  of  the  period  embraced  within  the 
span  of  his  maturity,  for,  unlike  tlie  actual  framers 
of  the  Constitution,  Webster  was  not  so  much  maker, 
as  upholder;  he  interpreted  it  tlirough  the  part  he 
played  in  the  history  of  his  times.  He  was  the  liv- 
ing embodiment  of  tlie  national  spirit  and  he  first 
gave  adequate  expression  to  the  "  slow  results  of 
time";  he  first  voiced  for  the  new  generation  the 
new  spirit  that  had  come  as  a  result  of  a  multitude 
of  causes. 


Daniel  Webster  171 

WliOTi  the  Virginia  and  tlie  Kentucky  Resolutions 
sent  abroad  tlieir  warning  note  of  danger  against 
the  Alien  and  Sedition  Acts,  and  the  reaction  against 
the  overreaching  nature  of  Federalist  tendencies  was 
rising  to  its  full  strength,  Webster  was  in  the  midst 
of  his  teens  ^ ;  the  triumph  of  Jefferson  came  with 
the  completion  of  his  college  career,  and  the  year  of 
his  majority  witnessed  the  Louisiana  Purchase.  The 
first  Embargo  Act  followed  within  two  years  after 
his  admission  to  the  bar,  and  his  opposition  to  the 
War  of  1812  secured  his  election  to  the  Thirteenth 
Congress;  there  he  was  at  once  placed  upon  the  Com- 
mittee of  Foreign  Affairs  of  which  Calhoun,  an  eager 
advocate  of  the  war,  was  chairman.  He  was  re- 
elected to  the  Fourteenth  Congress  and  still  con- 
tinued his  opposition  to  the  war;  in  the  same  Congress 
he  declared  himself  opposed  to  the  principle  of 
protection.^ 

This  opposition  to  a  war  which  did  more  than  any- 
thing up  to  that  time  to  strengthen  the  national  sen- 
timent and  to  elevate  the  Union  above  the  States,  and 
to  protection,  whose  zealous  champion  he  afterwards 
became,  presents,  in  its  contradictions,  a  very  striking 
parallel  to  the  career  of  Calhoun.  The  course  of 
Calhoun,  however,  was  just  the  reverse  of  that  of 
Webster.  Elected  a  member  of  Congress  for  the  first 
time  in  1811,  Calhoun  straightway  assumed,  along 
with  Clay,  the  leadership  of  that  powerful  group  of 
young  men  then  entering  public  life,  and  forced  on 
peace-loving  President  Madison  the  war  with  Eng- 
land.    As  late  as  1810  Callioun  was  an  avowed  ad- 

1  For  lives  of  Webster  see  Lodge,  McMaster,  and  Hapgood. 

2  Lodge,  p.  55  ff. 


172  Story  of  the  Constitution 

vocate  of  protection  and  internal  improvements,  both 
distinctly  national  doctrines  in  their  effects.  The 
subsequent  career  of  Calhoun  as  the  greatest  oppo- 
nent of  a  strong  central  government  and  the  leading 
exponent  of  the  rights  of  the  individual  States,  is  no 
more  contradictory  than  that  of  Webster  in  filling 
just  as  conspicuously  the  opposite  role  of  advocate 
of  a  strong  central  power  and  of  opponent  of  State 
Rights. 

The  Missouri  Compromise  was  entered  into  while 
Webster  had  temporarily  withdrawn  from  national 
politics  because  of  his  removal  to  Boston  from  his 
native  State.  His  re-entry  into  Congress,  as  a  Rep- 
resentative from  Massachusetts,  came  in  1823  and  in 
the  following  year  lie  opposed  the  ''  Tariff  of  1824  " 
in  a  remarkably  brilliant  speech.  In  1827  Webster 
entered  the  Senate,  the  scene  of  his  wortliiest  labors 
and  his  greatest  triumphs.  The  change  that  was 
coming  over  his  views,  a  change  that  may  be  at- 
tributed perhaps  to  the  cliauged  conditions  of  his 
life,  was  evidenced  in  his  support  of  the  "  Tariff 
of  Abominations"  in  1828;  from  this  time  forth 
Webster  was  a  consistent  supporter  of  the  policy  of 
protection.^ 

The  years  following  his  election  to  the  Senate  to 
his  death  in  1852  were  crowded  with  events  of  the 
highest  importance  in  which  he  played  a  principal 
part.  The  election  of  Jackson  to  the  Presidency, 
with  the  final  success  of  the  democratic  movement; 
the  threat  of  Nullification  in  Soutli  Carolina,  which 
called  forth  the  memorable  replies  to  Hayue  and  to 

i  Lodge,  op.  cit.,  p.  154  ff,  and  F.  W.  Taussig,  The  Tariff  His- 
tory of  the  United  States. 


Daniel  Webster  173 

Calhoun;  the  question  of  the  right  of  petition  so 
valiantly  fought  and  won  by  J.  Q.  Adams;  the  first 
mutterings  of  the  slavery  question  that  grew  rapidly 
into  a  demand,  on  the  one  side  for  extension,  and  on 
the  other  for  extinction ;  the  annexation  of  Texas;  the 
<luestiong  regarding  the  power  of  Congress  in  the 
Territories,  and  the  admission  of  new  States  with 
slavery  or  without,  are  sufficient  to  illustrate  the 
historical  movements  of  the  times  and  to  give  indi- 
cation of  the  opportunities  presented  of  influencing 
the  national  development.^ 

Time  and  space  forbid  a  detailed  study  of  Webster's 
speeches  on  all  these  questions,  richly  as  such  study 
repays  the  student,  whether  of  oratory  or  of  the 
principles  of  our  government.  Neither  can  we  pause 
to  trace  the  economic  influences  that  were  daily 
marking  off  North  and  South  more  distinctly  from 
each  other.  Suffice  it  to  say  that  slavery  early  dis- 
appeared in  the  North,  manufactures  and  free  labor 
flourished,  while  in  the  South,  cotton  and  slavery 
seemed  linked  in  perpetual  bonds  to  the  exclusion  of 
practically  all  industries  save  agriculture.  The 
West,  from  its  spirit  of  self-reliance  as  well  as  from 
its  economic  conditions,  found  itself  far  more  closely 
united  in  sympathy  and  interest  with  the  North  than 
with  the  South. 

Webster  grew  up  in  the  atmosphere  of  Federalist 
principles,  though  the  Federalist  party  went  down 
in  lasting  defeat  before  he  was  old  enough  to  cast  a 
ballot.  Though  the  party  died,  its  principles  lived. 
They  were  incorporated  in  the  very  structure  of  the 

1  Cf.  T.  H.  Benton,  Thirty  Years'  View,  and  J.  W.  Burgess, 
The  Middle  Period. 


174  Story  of  the  Constitution 

government  whicli  the  Democratic-Kepublicans  dared 
not  tear  down ;  tlieir  victory  in  1800  could  only  check, 
not  undo,  what  had  already  been  done.  The  Federal- 
ist principles,  moreover,  found  constant  application 
and  expansion  at  the  hands  of  Marshall  and  the 
Judiciary.  Webster's  first  great  argument  on  the 
Constitution  was  made  before  the  Supreme  Court 
with  Marshall  presiding.  It  was  in  the  celebrated 
Dartmouth  College  case  in  1818  when  Webster  was 
thirty-six  years  old.  A  graduate  of  Dartmoutli,  he 
found  peculiar  pleasure  in  defending  the  chartered 
rights  of  this  institution  of  which  he  said,  "  It  is 
...  a  small  College.  And  yet  there  are  those  who 
love  it."  1 

The  point  at  issue  was  whether  the  charter  of 
tlie  college  was  a  contract;  if  so,  then  certain  stat- 
utes passed  by  the  Legislature  of  New  Hampshire, 
modifying  the  clmrter,  were  null  and  void  because 
in  viohition  of  the  Constitution  which  lays  upon  the 
States  a  very  positive  limitation.  Tlie  prohibition  is 
contained  in  the  following  words.  "  No  State  shall 
.  .  .  pass  any  bill  of  attainder,  c.r  post  facto  law,  or 
law  impairing  the  obligations  of  contracts."  ^ 

The  court  was  thoroughly  in  sympathy  with  the 
position  taken  by  Webster.  In  the  case  of  Fletcher 
V.  Peck,-  decided  in  1810,  tlie  Court  had  held  that  the 
term  "  contract  "  included  botli  tliose  agreements  al- 
ready executed  and  tliose  still  to  be  executed;  that 
"  a  grant  or  conveyance  is  an  executed  contract,  the 
obligation    of    which    continues    binding    upon    the 

1  Quoted,  Lodge,  op.  cit.,  p.  90. 
-  Art.  i.,  Sec.  10. 
3  6  Cranch,  87. 


Daniel  Webster  175 

grantor.'"  Tliosc  })i'iiicii)l('s  I  lie  C'oiirl  iioav  a|)])li('(l 
ill  llie  Darhiioutli  College  case  to  the  cliarter  of  a  i»i'i- 
vate  cor])()rati<)U  and  the  New  llaiupshire  laws  were 
declared  uiicoiistitntional.  Though  often  cited  as  the 
case  which  established  the  inviolability  of  contracts 
under  the  Constitution,  in  reality  the  question  de- 
cided was  whetlier  the  charter  was  a  contract  for 
the  security  and  disposition  of  property,  or  a  grant 
of  political  power  which  might  be  recalled  at  the 
pleasure  of  the  State.  In  accepting  the  former  view, 
the  Court  strengthened  its  position  as  the  supporter 
of  the  nation  against  the  States  and  increased  the 
reputation  of  Webster  as  a  constitutional  lawyer. 

The  great  opportunity,  however,  for  Webster  to 
stand  forth  as  the  exponent  of  the  idea  of  national 
unity  came  when  the  doctrine  of  Nullification  was 
proclaimed  in  South  Carolina.  Then  it  was  that  he 
delivered  his  wonderful  speeches  in  support  of  the 
Constitution  as  the  basis  of  a  perpetual  Union,  as 
a  real  instrument  of  government  by  which  a  national 
state  had  been  created.  Of  his  two  most  noted 
speeches,  the  reply  to  Hayne  was  the  first  and  was 
delivered  in  1830.^  Nominally  on  the  Foote  Reso- 
lution in  the  Senate,  which  looked  to  the  restriction 
of  the  sale  of  public  lands,  it  in  reality  dealt  with 
the  paramount  question  of  the  nature  of  the  Federal 
Union.  Senator  Hayne  of  South  Carolina  had  taken 
advantage  of  the  opportunity  presented  by  the  Foote 
Resolution  to  give  expression  to  the  growing  sepa- 
ratist feeling  in  his  State,  a  feeling  which  owed  its 
immediate  origin   to   the  Tariff  of  1828   and   which 

1  In  Writings  and  Speeches  of  Daniel  Webster  (National 
Edition),  vi.,  3  ff. 


176  Story  of  the  Constitution 

found  its  culmination  in  the  Nullification  Ordinance 
of  1832.1  To  Webster  fell  the  task  of  replying  in 
behalf  of  that  great  body  of  the  people  who  believed 
in  the  necessity  of  Union  for  the  preservation  of 
Liberty — a  necessity  to  which  he  gave  expression  in 
the  closing  words  of  his  peroration,  "  Liberty  and 
Union,  now  and  forever,  one  and  inseparable." 

The  reply  to  Hayne  was  delivered  almost  without 
preparation,  yet  the  truth  is  that  his  whole  life  had 
been,  as  he  said,  a  constant  preparation.  Day  by 
day  he  had  gathered  together  thoughts,  impressions, 
ideals  of  national  unity,  and  on  this  occasion  he 
reached  the  zenith  of  his  career  as  statesman  and  as 
orator.  Other  speeches  in  behalf  of  the  Constitution 
followed,  but  none  of  them  quite  equalled  this  first 
attempt  to  set  forth  the  nature  of  the  Union  as  it 
had  developed  under  the  Constitution. 

In  a  consideration  of  the  questions  raised  in  this 
debate  we  must  remember  that  they  were  not  new; 
they  were  as  old  as  the  Constitution  itself,  for  they 
found  expression  in  the  Convention  which  framed  it 
and  in  the  State  conventions  which  adopted  it;  they 
arose  in  the  Virginia  and  Kentucky  Resolutions 
which  sought  to  interpret  it,  in  the  Hartford  Con- 
vention and  in  the  decisions  of  the  Supreme  Court 
in  some  of  its  most  famous  cases.  They  were  now 
presented  in  new  form  and  as  a  result  of  new  causes 
and  conditions;  they  were  presented  more  concretely 
and  as  a  practical  question  which  demanded  settle- 
ment.    Not  since  the  days  of  the  Constitutional  Con- 

'  Cf.  C.  W.  Loring,  Nullification,  Secession,  Webster's  Argu- 
ment, and  the  Kentucky  and  Virginia  Resolutions,  and  E.  P. 
Powell,  Nullification  and  Secession  in  the  United  States. 


Daniel  Webster  177 

vention  liad  the  issue  been  brought  to  a  test,  and 
even  now  the  linal  trial  was  postponed  as  a  result 
of  the  efforts  of  the  ''  Great  Compromiser,"  Henry 
Clay.  For  another  generation  South  Carolina  al- 
lowed the  doctrine  of  Nullification  to  sleep — to  sleep 
and  wake,  changed  in  form  but  not  in  substance. 
Nullification  transformed  into  Secession  shows  itself 
in  its  true  light  of  revoluti<m  in  the  Civil  War. 

The  great  problem  to  be  solved  was  the  nature  of 
the  Federal  Union ;  around  it  were  gathered  all  the 
other  questions  so  hotly  debated  back  and  forth ; 
whether  the  Constitution  was  a  compact,  creating  a 
league  of  sovereign  States,  or  a  supreme  law  consti- 
tuting a  supreme  government  within  the  sphere  of 
the  powers  conferred  upon  it;  whether  the  Consti- 
tution was  the  creature  of  the  States,  or  of  their 
governments,  or  of  the  people  of  the  United  States 
as  a  whole,  as  the  preamble  declared ;  whether  the 
individual  States,  as  sovereigns,  were  the  final  judges 
of  the  powers  conferred  by  the  Constitution,  or 
whether  that  power  was  vested  in  the  general  gov- 
ernment in  the  appropriate  organ.  These  are  the 
questions  upon  whose  solution  such  a  wealth  of  argu- 
ment was  poured  out,  and  which  called  forth  the 
loftiest  eloquence  our  country  has  produced. 

Webster  bore  off  the  palm  of  victory  in  this  de- 
bate, whether  in  the  field  of  oratory  or  of  argument; 
as  an  orator  he  was  without  a  peer,  and  his  logic 
carried  conviction  to  the  hearts  of  the  great  mass  of 
the  people  because  he  thought  as  they  thought,  be- 
cause he  represented  the  growing  spirit  of  national- 
ism which  saw  safety  in  Union ;  because  he  looked 
forw^ard  to  a  brilliant  future  of  united  action  and 


178  Story  of  the  Constitution 

not  backward  to  an  era  of  disunion,  as  the  goal  of 
his  ambition  for  his  country.  He  sought  to  support 
his  conception  of  the  nature  of  the  Union  from  the 
Constitution  itself  and  from  its  provisions  he  drew 
the  proofs  in  support  of  his  positions.  He  went 
back,  to  be  sure,  to  tlie  proceedings  of  the  Conven- 
tion, to  the  arguments  of  the  Federalist,  and  to  the 
State  conventions,  but  always  with  the  impression 
that  the  arguments  deduced  from  history  are  sub- 
sidiary in  character,  that  the  true  source  of  informa- 
tion upon  the  nature  of  the  document  is  the 
Constitution  itself,  what  it  then  was  and  what  it 
had  come  to  mean. 

To  a  certain  extent  Webster  was  caught  in  the 
toils  of  the  legal  formalism  of  the  age;  he  was  deeply 
influenced  by  the  worshipful  attitude  toward  the 
Constitution  that  had  held  sway  so  long  over  the 
people  and  thought  there  could  be  no  safer  guide  to 
its  meaning  than  the  words  of  the  instrument  itself. 
Herein  lay  the  weakness  of  his  reply  to  Hayne.  Its 
strength  and  its  powder  upon  the  people  were  due  to 
the  fact  that  it  made  clear  to  them  what  had  been 
hazy;  it  formulated  in  faultless  style  the  vague  con- 
ceptions of  the  times;  it  crystallized  the  national 
tendencies  and  became  a  part  of  the  people's  life  and 
thought,  their  storehouse  of  argument  upon  which 
they  were  to  draw  in  succeeding  years. 

The  Tariff  of  1832,  though  it  lowered  some  of  the 
duties,  reasserted  the  principle  of  protection  and 
therefore  was  equally  as  obnoxious  to  the  South,  and 
to  South  Carolina  in  particular,  as  was  the  "  Tariff 
of  Abominations  "  of  four  years  previous.  Acting  in 
accordance  with  her  previously  declared  intention,  on 


Daniel  Webster  179 

November  24,  1832,  South  Carolina  passed  the  Ordi- 
nance of  Nullitication,^  declaring  the  tariff  uncon- 
stitutional, and  null  and  void  within  her  territory, 
and  the  Legislature  proceeded  by  a  series  of  acts  to 
render  its  execution  impossible  without  recourse  to 
arms. 

On  December  10th,  President  Jackson  issued  his 
Proclamation  that  rang  with  the  spirit  of  his  famous 
toast,  "  The  Union,  it  must  be  preserved  I  "  The  su- 
premacy of  the  national  government  was  heralded  in 
no  uncertain  terms,  and  to  maintain  it,  he  declared 
that  the  armed  forces  of  the  United  States  would  be 
used,  if  necessary,  to  carry  into  effect  the  laws  which 
the  Ordinance  of  Nullification  had  declared  null  and 
void.  Calhoun,  the  foremost  champion  of  Nullifica- 
tion, resigned  his  office  of  Vice-President  and  was 
elected  a  member  of  the  Senate,  there  to  support  the 
cause  of  South  Carolina. 

It  was  but  natural  that  Webster  and  Calhoun 
should  lead  the  opposing  forces  in  this  fight  and  the 
clash  soon  came  on  the  Force  Bill,  a  measure  to  con- 
fer on  the  President  the  powers  necessary  to  secure 
the  enforcement  of  the  law  in  South  Carolina.  In 
his  exposition  of  the  doctrine  of  Nullification,  Cal- 
houn surpassed  Hayne  in  the  logic  and  power  of  his 
speech  as  the  master  does  the  pupil.  But  Webster's 
reply  on  the  16th  of  February,  "  The  Constitution 
not  a  Compact  of  Sovereign  States,"  -  equalled 
neither  in  oratorical  power  nor  logical  strength  his 
reply  to  Hayne. 

Calhoun's  strength,  as  Webster's  weakness,  was  in 

1  See  Appendix  for  the  text  of  the  Ordinance. 

2  Writings,  vi.,  181  ff. 


i8o  Story  of  the  Constitution 

history.  What  the  Constitution  meant  in  1789  was 
the  foundation  of  Calhoun's  argument,  and  it  was 
difficult  to  controvert  his  position  that  the  Consti- 
tution was  a  compact,  and  was  so  regarded  by  its 
framers.  The  support  he  drew  from  the  Virginia 
and  Kentucky  Resolutions,  the  frequent  threats  of 
dissolution  in  the  early  days  of  the  Union,  and  the 
action  of  the  Hartford  Convention  rendered  his  posi- 
tion a  strong  one.  What  the  Constitution  was  in 
1789,  that  it  was  in  1832;  such  was  the  conclusion 
of  Calhoun  and  it  was  difficult  to  see  how  the  con- 
clusion could  be  avoided.  There  had  been  few  amend- 
ments and  they  had  looked  rather  toward  his  view 
than  away  from  it.  How,  then,  was  it  possible  that 
the  natiu"e  of  the  instrument  had  changed?  Was 
there  some  subtle  process  of  transformation  by  which 
the  nature  of  things  was  changed  without  changing 
their  appearance?  Was  the  Constitution  the  same 
and  not  the  same? 

Webster  likewise  attempted  to  take  the  same  at- 
titude toward  the  Constitution  and  sought  to  show 
from  history  that  it  had  always  been  what  it  then 
was.  He  would  have  been  wiser  to  have  disregarded 
history,  and  to  have  accepted  the  Constitution  as 
being  the  instrument  of  National  Union  the  people 
then  considered  it,  for  in  this  lay  his  true  strength, 
and  his  appeals  to  history  only  weakened  an  other- 
wise impregnable  position. 

The  reply  to  Calhoun,  however,  supplemented  that 
to  Hayne  and  the  two  together  did  more  than  any- 
thing else,  perhaps,  to  mould  the  sentiment  of  Union, 
to  give  it  form,  consistency,  and  coherency  in  the 
years  of  severe  trial  that  were  to  come.     In  this,  as 


Daniel  Webster  i8i 

in  the  former  speech,  there  is  the  appeal  to  the  words 
of  the  Coustitution  itself.  He  draws  upon  them  to 
support  his  principal  contention.  What  does  it  pro- 
claim itself  to  be,  a  compact  or  a  constitution,  which, 
in  the  words  of  Hamilton,  is  only  "  another  name  for 
power  or  government"?  It  is  a  constitution,  an  in- 
strument of  government.  "  The  Constitution,  sir,  is 
not  a  contract,  but  the  result  of  a  contract;  meaning 
by  contract  no  more  than  assent.  Founded  on  con- 
sent, it  is  a  government  proper.  .  .  .  The  people  have 
agreed  to  make  a  Constitution ;  but  when  made,  that 
Constitution  becomes  what  its  name  imports.  It  is 
no  longer  a  mere  agreement."  ^ 

Futhermore  the  Constitution  itself  is  authority  for 
the  statement  that  it  was  ordained  by  the  people  of 
the  United  States,  not  by  the  States  as  such.  But 
here  Webster  failed  to  note  that  the  original  pre- 
amble declared  that  "  We,  the  people  of  the  States 
of  New  Hampshire,  Massachusetts,  etc.,"  and  that 
the  names  of  the  several  States  were  omitted  and  the 
form,  "  We,  the  people  of  the  United  States,"  was 
adopted  because  of  the  uncertainty  as  to  which  States 
would  adopt  the  Constitution,  and  the  fact  that  it 
would  become  binding  upon  such  States  when  adopted 
by  nine.-  Even  as  it  stands,  the  expression,  "  We 
the  people  of  the  United  States,"  is  capable  of  a 
twofold  interpretation,  and  Webster's  opponents  were 
not  slow  to  seize  upon  the  one  favorable  to  their  view.^ 
To  a  calmer  generation   it  would  appear  futile  to 

1  Writings,  vi.,  201. 

-  Documentary  History  of  the  Constitution,  iii.,  444,  and  Madi- 
son, Writings,  iii.,  92  and  422. 

3  Johnston,  American  Political  History,  ed.  by  James  A.  Wood- 
burn,  i.,  47. 


i82  Story  of  the  Constitution 

attempt  to  derive  a  conclusive  argument  from  either 
view.^ 

Having  established,  then,  the  position  that  the 
Constitution  is  not  a  compact  among  sovereign  States, 
but  a  law  and  ordinance  of  government,  established 
by  the  whole  people,  just  as  the  State  constitutions 
are  established  by  the  people  of  the  States,  Webster 
advances  to  his  next  point.  This  law  declares  itself 
to  be  supreme.  "  This  Constitution,  and  the  laws 
of  the  United  States  which  shall  be  made  in 
pursuance  thereof  .  .  .  shall  be  the  supreme  law 
of  the  land;  and  the  judges  in  every  State  shall 
be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwithstand- 
ing." 2 

The  practical  question  which  presented  itself  was: 
Who  had  the  right  to  decide  in  the  case  of  a  contro- 
versy between  the  States  and  the  central  government 
regarding  the  extent  of  the  powers  conferred  upon 
the  latter?  All  agreed  that  the  Federal  Government 
was  one  of  strictly  limited  powers  and  that  it  could 
exercise  only  those  rights  which  had  been  expressly 
delegated  to  it,  but  as  to  the  extent  of  those  powers 
there  must  arise  differences  of  opinion.  The  doctrine 
of  Nullification  asserted  that  each  State,  in  its  sov- 
ereign capacity  as  a  party  to  the  contract,  had  the 
right  to  determine  whether  or  not  Congress  had  ex- 
ceeded its  powers  in  the  passage  of  any  law,  and 
having  determined  the  question  in  the  affirmative, 
possessed  the  further  riglit  of  declaring  such  law 
unconstitutional,  and   so   null   and   void   within   the 

1  Cf.  Merriam,  op.  cit.,  p.  284  ff. 
-  Art.  vi. 


Daniel  Webster  183 

limits  of  siicb  State.^  Webster  admitted  that  this 
would  be  the  case  if  the  Union  were  only  a  league, 
restiug  on  a  compact,  but  having  proved,  to  liis  own 
satisfaction  at  least,  that  the  Constitution  was  no 
compact  but  the  supreme  law  of  the  land,  it  followed 
"  both  by  necessary  implication  and  by  express 
grant,"  that  the  Federal  Government  was  the  final 
and  conclusive  judge  of  its  own  powers.  Only  so  can 
the  Constitution  be  supreme.^ 

The  exercise  of  this  power  by  the  central  govern- 
ment might  take  place  in  either  of  two  ways.  First, 
in  the  determination  of  all  cases  that  might  arise 
under  the  Constitution  and  laws  of  the  United  States, 
the  national  Judiciary  is  declared  by  the  Constitu- 
tion to  be  supreme.  "  As  to  the  cases  .  .  .  which  do 
not  come  before  the  courts,  those  political  questions 
which  terminate  with  the  enactments  of  Congress, 
it  is  of  necessity  that  these  should  be  ultimately  de- 
cided by  Congress  itself."  ^  If  not,  and  each  State 
is  to  decide  for  itself,  then  the  dilemma  confronts  us 
that  "  what  is  law  in  one  State  is  not  law  in  another. 
Or,  if  the  resistance  of  one  State  compels  an  entire 
repeal  of  the  law,  then  a  minority,  and  that  a  small 
one,  governs  the  whole  country."  ^  The  power  of 
ultimate  and  final  judgment  is  one  that  must  be  en- 
trusted to  the  national  government  under  the  security 
of  the  responsibility  of  members  of  Congress  to  the 
people. 

The  right  of  each  State  to  declare  null  and  void 

1  Cf.  Calhoun's  Works,  \\.,  passim. 

2  Webster,  Writings,  vi.,  213. 
^Ihid.,  vi.,  219. 

*  Cf.  Ibid.,  vi.,  196. 


184  Story  of  the  Constitution 

a  law  it  deemed  imcoustitutional,  was  declared  by 
the  supporters  of  Nullification  to  be  a  constitutional 
right  and  one  that  might  be  exercised  while  the  State 
still  remained  in  the  Union.  Such  a  condition,  which 
Webster  characterized  as  "  half  allegiance  and  half 
rebellion,"  he  proved  conclusively  was  and  could  be 
ultimately  nothing  but  revolution,  open  rebellion,  to 
be  maintained  by  force  of  arms.^  So  convincing  was 
his  argument  that  a  later  generation  was  compelled 
to  admit  its  truth  and  Secession  replaced  Nullifica- 
tion. But  Secession  w^as  admittedly  revolutionary, 
extra-constitutional,  of  which  the  justification  could 
be  found  only  in  the  appeal  to  the  inherent  right  of 
all  peoples  to  change  tlieir  form  of  government  when 
the  evils  they  endure  become  intolerable. 

The  arguments  of  both  sides  rested  in  large  part 
upon  the  phraseology  of  the  Constitution  itself;  the 
appeal  to  history  for  justification  made  by  each  w^as 
better  founded  in  tlie  case  of  Callioun  tlian  of  Web- 
ster, but  Webster's  argument  prevailed  with  the  body 
of  the  people  because  it  interpreted  the  Constitution 
in  the  light  of  the  popular  feeling  of  the  day.  There 
was  unquestionably  a  time  when  Calhoun's  argument 
would  have  touched  a  more  responsive  chord  than 
Webster's,  but  that  time  was  past.  The  generation 
of  Nullification  knew  no  State  outside  of  the  Union ; 
knew  not  the  States,  discordant,  warring,  as  in  the 
days  of  the  Confederation.  Tlie  States  of  the  West 
knew  no  other  existence  than  tliat  within  the  Union 
and  desired  no  other.  Tlieir  spirit  liad  been,  almost 
without  exception,  national  in  its  character  and  mani- 
festations, as  though  the  fact  that  the  Western  Terri- 

1  Webster,  Writings,  vi.,  192  ff. 


Daniel  Webster  185 

tory  liad  been  a  bond  of  union  in  tlie  days  of  the 
Confederation,  had  left  its  stamp  upon  the  disposi- 
tion of  the  States  formed  from  it.  The  North  and 
the  West  could  not  conceive  of  the  right  of  a  State 
to  destroy  the  Union,  as  Nullification  and  Secession 
would  inevitably  have  destroyed  it.  Hence  came 
the  well-nigh  universal  response  with  which  the 
noble  argument  of  Webster  was  met  throughout  these 
sections. 

Webster's  attitude  with  regard  to  the  Bank  was 
but  another  indication  of  his  general  position,  one 
more  evidence  of  his  general  stand  with  respect  to 
the  powers  of  the  national  government.^  Though 
Webster  had  stood  with  Jackson  in  sustaining  the 
Union  against  the  destructive  doctrine  of  Nullifica- 
tion, he  could  not  join  him  in  what  he  deemed  a 
foolish,  if  not  a  criminal,  attack  on  the  United  States 
Bank.  Webster  felt  no  scruple  as  to  the  constitu- 
tionality of  the  Bank  and  was  convinced  of  its  value 
to  the  country;  Jackson's  antagonism  to  it  he  re- 
garded in  the  light  of  a  personal  hatred,  aroused  by 
the  belief  that  the  Bank  was  a  political  machine  in 
the  hands  of  his  enemies,  and  his  action  in  reference 
to  it  as  a  gross  violation  of  the  Constitution.  Web- 
ster joined  in  passing  the  Resolution  of  Censure,  the 
expunging  of  which  from  the  records  of  the  Senate 
became  the  most  ardent  desire  of  all  Jackson  men. 

From  the  days  of  Nullification  to  the  day  of 
Webster's  death,  the  great  issue  before  the  country 
was  slavery.^     In  the  very  year  that  Webster  made 

1  For  Webster's  speeches  on  the  Bank,  see  Works,  vi.,  vii., 
and  viii. 

2  Cf.  A.  B.  Hart,  Slavery  and  Aholition,  1831-1841. 


i86  Story  of  the  Constitution 

his  reply  to  Calhoun,  the  National  Anti-Slavery  So« 
ciety  was  established  and  Abolition  became  an  active 
principle.  Webster  was  in  no  sense  an  abolitionist. 
In  his  fiercest  condemnations  of  slavery,  there  is 
never  a  hint  of  abolition.  Against  tlie  slave  trade, 
against  the  extension  of  slaver}',  against  the  institu- 
tion of  slavery  itself,  he  might  hurl  his  most  savage 
attacks,  but  never  without  recognition  of  the  position 
that  had  been  assured  it  by  the  Constitution.  The 
desire  to  uphold  the  Union  and  the  Constitution 
was  as  strong  in  Webster  on  March  17,  1850,  as 
on  February  16,  1833,  but  his  idea  as  to  the  means 
had  changed.  In  1833  he  was  bitterly  opposed  to 
the  compromise  mediated  by  Clay  and  declared  "  that 
the  time  had  come  to  test  the  strength  of  the  Con- 
stitution and  the  government."  ^  In  1850,  facing  a 
united  and  menacing  slave  power,  the  strongest  politi- 
cal force  in  the  country,  he  deemed  it  wise  to  yield 
to  its  demands  and  not  forbid  slavery  in  the  new 
Territories.  Such  a  concession  seemed  to  offer  the 
only  hope  of  preserving  the  Union.  To  forbid  slav- 
ery, moreover,  in  these  Territories  was  useless,  and 
he  "  would  not  take  pains  uselessly  to  reaffirm  an 
ordinance  of  nature,  nor  to  re-enact  the  will  of  God."  ^ 
Early  and  late  he  sought  to  guard  against  Seces- 
sion and  war;  in  1833  he  was  willing  to  put  South 
Carolina  to  the  test,  but  in  1850  he  would  set  the 
threatening  agitation  at  rest  and  ensure  a  final  and 
conclusive  settlement  by  yielding.  But  peace  was 
not  to  be  secured  through  an  attempt  to  silence  the 
agitation ;  tlie  narcotic  of  constitutional  guarantees 

1  Quoted  in  Lodge,  op.  cit.,  p.  222. 
-  Writings,  x.,  84. 


Daniel  Webster  187 

was  no  lonjijer  effective  in  (leadening  tl»e  moral  con- 
science, and  a  decade  later,  the  men  of  the  Nortli 
remembered  only  the  Webster  of  the  earlier  days — 
the  man  who  voiced  a  nation's  cry  for  life;  the  man 
to  whom  Liberty  meant  Union  and  Union  meant 
Liberty,  "  one  and  inseparable,  now  and  forever !  " 


IX 

John  C.  Calhoun.    Retardation  through 
Sectional  Influence 


189 


JOHN  C.  CALHOUN 


1782.     March  18. 

1802-04. 

1807. 

1808. 

1811. 


1816. 

1817-1825. 
1824. 
1828. 


1832. 


1835. 
1836. 
1842. 
1844. 
1845.     March  4. 

Dec.  1. 
1849. 


1850.     March  31, 


Born  in  Abbeville  district,  S.  C. 

At  Yale. 

Admitted  to  Bar. 

Elected  to  State  Legislature. 

Elected  as  Representative  to  Twelfth  Con- 
gress. 

Advocated  war  with  Great  Britain. 

Advocated  Tariff  and  Bank  Bill. 

Secretary  of  War. 

Vice-President. 

Vice-President. 

"  The  South  Carolina  Exposition." 

Resigned  Vice-Presidency  and  became  Sen- 
ator. 

Nullification   measures. 

Re-elected  to  Senate. 

Opposed  reception  of  anti-slavery  petitions. 

Resigned,  to  take  effect  March  3,  1843. 

Secretary  of  State. 

Retired  from  Cabinet. 

Took  seat  in  Senate  again. 

"  Address  to  the  People  of  the  South." 

"  A  Disquisition   on  Government." 

"  A  Discourse  on  the  Constitution  and  Gov- 
ernment of  the  United  States." 

Died  at  Washington. 


15s 


IX 

John  C.  Calhoun.     Retardation  through 
Sectional  Influence 

KTO  two  names  in  American  history  are  more 
■I  ^  closely  associated  than  those  of  Webster  and 
Calhoun ;  no  names  are  more  often  mentioned  in  con- 
junction and  no  careers  present  more  startling  con- 
trasts. North  and  Soutli,  Union  and  Secession,  Free 
and  Slave,  are  summed  up  in  these  two  men, — in  their 
lives,  their  characters,  and  their  public  acts. 

In  time  they  were  contemporary  in  the  strictest 
sense,  for  both  were  born  in  the  year  1782,  and  they 
died  within  two  years  of  each  other,  Calhoun  in  1850 
and  Webster  in  1852.  Both  were  graduates  of  New 
England  colleges,  for  Calhoun,  though  born  in  Soutli 
Carolina,  was  not  satisfied  with  the  limited  opportu- 
nities offered  by  the  South  and  so  sought  the  larger 
advantages  of  Yale  where  he  graduated  in  1804. ^ 
Later  he  studied  law  at  the  then  prominent  law 
school  at  Litchfield,  Connecticut.  Both  men  entered 
public  life  at  about  the  same  time,  both  were  members 
of  the  House  and  of  the  Senate,  both  were  members 
of  Cabinets,  and  both  were  aspirants  for  the  Presi- 
dency; Calhoun,  moreover,  was  twice  elected  Vice- 
President. 

1  Lives  by  H.  von  Hoist  and  Gaillard  Hunt. 

191 


192  Story  of  the  Constitution 

Calhoim  entered  public  life  in  1808  as  a  member 
of  the  State  Legislature,  having  already  demonstrated 
the  logical  character  of  his  mind  and  his  sound  men- 
tal equipment  by  an  unusually  rapid  rise  to  promi- 
nence at  the  bar.  Three  years  later  he  was  elected 
a  member  of  the  Twelfth  Congress.  Henry  Clay  had 
at  the  same  time  been  elected  a  member  of  the  House 
and  was  chosen  Speaker.  Clay  appointed  Calhoun 
a  member  of  the  Committee  on  Foreign  Relations 
and  the  Committee  elected  him  chairman.  Both  Clay 
and  Callioun  were  new  men  in  the  House,  though 
Clay  had  served  a  few  months  in  the  Senate,  and 
their  elevation  to  the  two  most  important  positions 
in  it  is  explicable  only  on  the  ground  of  their  well- 
known  view  on  the  question  of  a  war  with  England.^ 
The  West  and  the  South  were  eager  for  the  war, 
while  New  England  opposed  it.  The  latter  was  more 
jealous  of  the  growing  influence  of  the  other  sections 
in  national  affairs  than  zealous  for  the  national 
honor,  especially  when  its  defence  meant  a  loss  to 
her  commercial  interest. 

Clay  and  Calhoun  drew  in  with  their  first  breath 
the  vigorous  air  of  the  new  democracy  of  the  West, 
alive  with  the  spirit  of  nationality;  they  were  the 
product  of  a  new  era,  the  advance  guard  of  a  new 
order  of  things  in  our  political  life,  and  they  swept 
away  with  ruthless  hand  the  statesmen  of  the  older 
generation,  the  leaders  who  had  developed  out  of  the 
revolutionary  struggle.  Mr.  Bagehot  has  told  us  how, 
in  English  politics,  it  has  seemed  at  times  that  a  whole 
generation  of  statesmen,  who  have  grown  old  in  their 
leadership  and  who  have  held  on  long  beyond  their 

^  Cf.  Von  Hoist,  John  C.  Calhoun,  p.  15  ff. 


John  C  Calhoun  193 

allotted  years,  drops  off  all  at  once  and  its  place  is 
taken  by  a  new  and  younger  generation.  Instead  of 
a  gradual  process  of  removal  which  leaves  no  break, 
there  is  an  abrupt  severance  as  though  a  whole  gene- 
ration had  been  passed  over. 

Some  such  condition  existed  at  the  opening  of  the 
Twelfth  Congress.  Madison  had  succeeded  to  the 
Presidency  in  1809,  in  regular  line  of  promotion  from 
the  Secretaryship  of  State,  bringing  with  him  all  the 
traditions  of  a  former  period  and  perpetuating  the 
principles  and  practices  of  other  times.  But  with 
the  coming  of  Clay  and  Calhoun  and  their  brilliant 
following  of  young  men,  the  scene  changes.  Madi- 
son, to  be  sure,  continues  to  be  President,  but  he  is 
in  no  sense  leader  as  Jefferson  had  been ;  the  prin- 
cipal role  has  passed  from  the  Executive  to  Congress, 
and  interest  centres  around  the  Speaker  and  the 
Chairman  of  the  Committee  on  Foreign  Relations; 
they  assume  the  leadership  and  force  on  an  unwilling 
President  a  party  war. 

Webster  entered  Congress  two  years  later  than 
Calhoun  and  as  an  opponent  of  the  war  with  Eng- 
land. The  conflict  with  Calhoun  that  lasted  nearly 
forty  years  began  at  once.  Fate  seemed  to  have 
created  these  two  to  play  the  roles  of  opposing  cham- 
pions, for  each  changed  his  position  with  respect  to 
the  great  issues  before  the  country  and  thus  remained 
ever  upon  opposing  sides.  Calhoun  was  at  this  time 
and  continued  for  some  years  to  be,  an  advocate  of 
measures  and  of  principles  that  were  of  a  strongly 
nationalizing  character.^      To   these   Webster   found 

1  Von  Hoist,  op.  cit.,  p.  26  ff.  For  Calhoun's  early  speeches 
cf.  Works,  ii.,  ed.  by  R.  K.  Cralle. 


194  Story  of  the  Constitution 

himself  opposed.  Calhoun  was  eager  for  a  war  that 
did  more  than  all  else  that  had  preceded  it,  to  create 
a  national  feeling.  Webster's  first  political  success 
came  from  his  hostility  to  this  war.  Both  were  in- 
fluenced here,  as  throughout  their  lives,  by  the  atmos- 
phere around  them,  though  it  is  Calhoun  who  now 
feels  the  throb  of  the  great  nation's  life  in  his  pulses 
while  Webster  is  under  the  domination  of  New  Eng- 
land's antipathy  to  the  war.  Calhoun  advocates  a 
tariff  and  internal  improvements;  Webster  opposes 
them.  As  time  went  by  influences  were  at  work 
which  eventually  brought  them  again,  but  with  posi- 
tions reversed,  into  opposition  upon  these  same  ques- 
tions. Calhoun  ceases  to  advocate  a  tariff  and 
internal  improvements;  Webster  ceases  to  oppose 
them  and  becomes  their  advocate.  Calhoun  ceases 
to  think  of  national  welfare  before  State  interests; 
Webster  comes  to  think  first  and  always  of  national 
union  and  greatness.  Calhoun  begins  to  see  in  na- 
tional strength  a  menace  to  liberty,  in  too  close  a 
union  a  danger  to  freedom ;  Webster  sees  safety  only 
in  union  and  beholds  the  blessings  of  liberty  im- 
perilled by  the  sovereignty  of  the  States. 

During  the  eight  years  of  Monroe's  administration, 
Calhoun  was  Secretary  of  War  and  showed  himself 
an  administrator  of  a  high  order;  in  1824  and  again 
in  1828  he  was  elected  Vice-President.  It  was  during 
these  years  of  administrative  work  that  Calhoun's 
opinions  began  to  change,  and  it  is  much  to  be  re- 
gretted that  his  activities  were  not  such  as  to  call 
out  expressions  of  his  opinions,  tliat  we  might  with 
greater  certainty  trace  the  progress  of  the  change. 
This  much  seems  sure:  that  wlien  Calhoun  returned 


John  C.  Calhoun  195 

to  Soutb  Carolina  in  1828  after  the  passage  of  the 
"  Tariff  of  Abominations,"  he  had  been  so  long  away 
from,  and  had  gotten  so  far  out  of  touch  with,  the 
people  of  the  State  that  he  was  unprepared  for  the 
great  change  that  had  come  over  them.  The  repre- 
sentations made  to  him  by  the  leading  men  who 
visited  him  at  his  home  at  Fort  Hill  made  a  deep 
impression  upon  him^;  it  did  not  seem  possible,  as 
he  brooded  over  the  distressing  economic  condition 
thus  presented  to  his  attention,  that  the  framers  of 
the  Constitution  could  ever  have  intended  that  a 
single  State  or  several  States  should  suffer  from  na- 
tional legislation,  as  he  believed  South  Carolina  was 
then  suffering  from  the  tariff;  and  as  he  himself 
said,  "  he  turned  to  the  Constitution  to  find  a 
remedy."  The  result  was  the  "  South  Carolina  Ex- 
position,'' 2  in  which  Calhoun  set  forth  for  the  first 
time  a  thorough-going  programme  of  Nullification. 

The  Virginia  and  Kentucky  Resolutions  of  1798 
were  claimed  as  the  lawful  source  of  the  doctrine, 
and  the  great  name  and  fame  of  Jefferson  were  ad- 
duced in  its  support.  Despite  Madison's  protest 
against  the  use  of  Jefferson's  name  "  as  a  pedestal 
for  this  colossal  heresy,"  ^  the  possibility  of  reading 
into  the  Resolutions  the  meaning  Calhoun  attached 
to  them  remained  and  contributed  its  share  toward 
strengthening  the  sentiment.  The  time,  however,  was 
not  yet  ripe  for  more  than  a  formal  declaration. 
There  was  a  hope  that  the  tariff,  through  its  inequal- 

1  Cf.  D.  F.  Houston,  A  Study  of  Nullification  in  South  Caro- 
lina. 

2  Works,  vi.,  1  ff. 

3  Madison,  Letters  and  Other  Writings,  iv.,  229. 


196  Story  of  the  Constitution 

ities,  would  prove  unendurable  to  the  Nortli  as  well 
as  to  the  South,  and  that  Jackson,  a  Southerner  and 
a  State-Kights  man,  would  favor  its  repeal.^  Mean- 
while the  efforts  of  Calhoun  were  directed  to  strength- 
ening his  position  and  to  consolidating  the  forces  that 
were  to  sustain  him. 

Calhoun's  hope  of  relief  through  Jackson  soon 
proved  vain,  for  though  the  duties  of  1828  were  low- 
ered, the  principle  of  protection  was  reaffirmed  in  tlie 
Act  of  1832.  The  time  had  now  come  for  a  more 
active  programme  of  resistance,  for  a  trial  of  the 
doctrines  that  had  been  proclaimed  as  a  threat. 
South  Carolina,  through  a  convention,  passed  in 
November  the  Ordinance  of  Nullification,-  declaring 
the  tariff  laws  "  null,  void,  and  no  law,  nor  binding 
upon  South  Carolina,  her  officers  and  citizens,"  and 
threatening  Secession  if  force  should  be  used  in  the 
attempt  to  execute  them.  The  Legislature  of  the 
State  met  in  the  same  month  and  proceeded  to  pre- 
pare for  war  and  to  resume  tlie  powers  which  had 
been  expressly  granted  to  the  Government  of  the 
United  States  in  the  Constitution. 

Calhoun  was  the  guiding  spirit  in  South  Carolina's 
every  action,  and  soon  after  President  Jackson  had 
issued  his  famous  proclamation  of  December  10th,  in 
which  he  declared  his  fixed  intention  to  carry  out 
the  law  in  the  face  of  all  opposition,  Calhoun  re- 
signed the  Vice-Presidency  and  was  elected  to  the 
Senate,  there  to  figlit  the  losing  battle  of  State-Rights 
and  Slavery  for  tlie  renminder  of  his  life. 

If  Calhoun  had  believed  that  Jackson  would  sup- 

1  Von  Hoist,  op.  cit.,  82  ff. 
-  See  Appendix. 


John  C.  Calhoun  197 

port  South  Carolina,  or  at  least  not  oppose  her  by 
force,  because  of  his  Southern  sympathies,  or  if  he 
trusted  that  because  Jackson  had  failed  to  support 
the  Supreme  Court's  decision  in  the  Cherokee  Indian 
case,  he  would  follow  a  similar  course  of  inaction  on 
the  present  occasion,  he  was  far  from  a  correct  in- 
terpretation of  the  situation  or  of  Jackson's  char- 
acter. It  was  doubtless  a  great  satisfaction  to 
Jackson  to  leave  unexecuted  a  decision  of  his  old 
enemy,  John  Marshall;  it  was  an  opportunity  to  en- 
force the  lesson  that  Federalist  principles  were  no 
longer  to  be  the  order  of  the  day;  a  notice  that  the 
long  predominance  of  the  Court  was  at  an  end;  that 
Jackson  as  well  as  Marshall  would  act  as  interpreter 
of  the  Constitution  whenever  it  became  necessary 
from  the  standpoint  of  Executive  action.  Had  he 
not  sworn  to  uphold  the  Constitution,  and  to  keep 
his  oath  must  he  not  uphold  it  as  he  understood  it? 

Hatred  of  Marshall  confirmed  him  in  inaction  in 
the  Cherokee  case.  The  conditions  were  exactly  re- 
versed in  the  case  of  South  Carolina.  Calhoun  he 
hated  with  even  more  violence  than  he  did  Marshall,^ 
and  this  hatred  led  him  to  proclaim  a  stronger  na- 
tional sentiment  than  he  could  well  maintain  when 
Nullification  no  longer  threatened.  Jackson  was  de- 
termined to  have  his  will.  Action  in  the  one  case 
and  inaction  in  the  other  were  alike  to  him,  so  his 
imperious  will  might  have  its  way,  and  contradictory 
constitutional  doctrines  easily  found  lodgment  in  the 
"  old  Hero's  "  breast  when  passion  stirred  it. 

The  result  of  the  conflict  between  South  Carolina 

^  Cf.  Hunt,  op.  cit.,  p.  112;  Von  Hoist,  op.  cit.,  p.  84,  and 
Sumner's  Andrew  Jackson,  p.  196  ff. 


198  Story  of  the  Constitution 

and  the  Federal  Government  added  another  to  the 
many  compromises  in  our  constitutional  history. 
Both  sides  claimed  the  victory  which  belonged  clearly 
to  neither.  For  the  time  being,  Calhoun  had  accom- 
plished what  he  immediately  desired,  for  the  taritt" 
was  to  be  reduced.  But  his  interpretation  of  the 
Constitution  was  not  accepted,  and  the  spirit  of 
nationality  continued  to  increase  in  strength  till  it 
reached  its  final  triumph  in  the  Civil  War. 

Early  in  the  year  1833,  Calhoun  in  fulfilment  of 
his  object  in  entering  the  Senate,  stated  in  masterly 
fashion  the  interpretation  of  the  Constitution  that 
underlay  Nullification. ^  Lacking  in  the  fire  that 
made  Webster's  eloquence  overpowering,  Calhoun 
was,  nevertheless,  a  great  orator  to  whom  men  lis- 
tened with  rapt  attention.  His  deep  earnestness, 
logical  precision,  keen  analysis,  and  almost  prophetic 
vision  of  the  future,  when  added  to  the  fact  that  he 
spoke  as  the  unquestioned  representative  of  the  South 
and  its  peculiar  interests,  lent  a  gravity  and  impres- 
siveness  to  his  words,  second  to  that  inspired  by  none. 

Calhoun  was  no  longer  national  in  his  feelings  and 
sympathies ;  he  had  repudiated  all  his  earlier  national 
views  and  was  become  the  representative  of  a  section 
and  its  interests.  Yet  his  love  for  his  country  and 
for  the  Union  was  intense,  but  it  was  love  for  a  kind 
of  Union  that  was  dead.  With  almost  his  last  breath 
he  proclaimed  his  love  for  it  and  would  save  it  from 
destruction  at  the  hands  of  those  who  called  them- 
selves its  friends.-  The  word  he  most  wished  en- 
graved  on   his   tombstone   was   Nullification,   for   it 

1  Works,  ii.,  197  ff. 
^  Ibid.,  iv.,  577. 


John  C.  Calhoun  199 

meant  the  freedom  of  South  Carolina  and  of  every 
other  State  from  oppressive  measures  on  the  part  of 
the  general  government;  it  meant  the  liberty  of  the 
States,  and  the  preservation  of  the  Union  in  its 
original  form.  To  him  the  Union  of  Webster's  de- 
sire meant  tyranny,  and  tyranny  meant  rebellion  and 
dissolution  of  the  Union.  If  the  Union  was  to  Int 
saved,  it  could  only  be  by  reverting  to  its  original 
form  from  which  there  had  been  so  wide  a  departure. 

Led  on  by  his  zeal  for  his  State,  for  the  South, 
and  its  institution  of  slavery,  he  could  see  no  safety 
in  any  form  of  Union  in  which  the  minority  could 
not  protect  itself  against  the  majority,  in  which  a 
State  could  not  defend  its  reserved  rights  by  being 
itself  the  judge  whether  or  not  these  rights  had  been 
infringed.  It  was  self-evident,  he  thought,  that  to 
make  the  Federal  Government  the  judge  of  its  own 
powers  was  to  make  its  discretion,  not  the  Consti- 
tution, the  measure  of  those  powers,  and  to  place 
every  right  and  liberty  of  the  States  at  the  mercy 
of  this  discretion,  and  to  destroy  the  true  nature  of 
the  Union.  He  believed  in  a  Confederation  of  sov- 
ereign States,  united  by  a  compact  for  certain  speci- 
fic purposes.  The  Constitution  he  regarded  as  such 
a  compact  among  sovereign  States  and  it  was  not 
difficult  to  find  abundant  warrant  for  his  view  in 
the  words  of  the  framers  of  the  document.^ 

If  the  Constitution  was  a  compact,  then,  argued 
Calhoun,  the  Union  was  a  Confederation  and  not  a 
Federal  State.  The  only  result  of  an  agreement  was 
an  agreement,  and  not,  as  Webster  declared,  "  a  gov- 

1  Cf.  Works,  i.,  Ill  ff.  Discourse  on  the  Constitution  and 
Government  of  the  United  States. 


2  00  Story  of  the  Constitution 

ernment  proper."  The  general  government  was 
merely  the  agent  of  the  States  and  when  the  agent 
exceeds  his  authority,  when  the  general  government 
passes  a  law  that  one  of  the  parties  to  the  compact 
considers  unconstitutional,  that  party  may  declare 
such  law  null  and  void.  If  the  right  of  Nullification 
were  recognized,  the  majority  would  be  more  willing 
to  listen  to  reason,  and  would  be  forced  to  accommo- 
dation. It  was  a  constitutional  right  to  be  exercised 
for  the  preservation  of  the  Union;  only  by  its  use 
could  the  members  of  the  Union  live  together  in 
peace.  After  Nullification,  the  last  resort  of  an 
injured  State  was  Secession ! 

Calhoun  proclaimed  himself  a  Democrat  of  the 
strictest  sect  and  doubtless  he  believed  that  he  was; 
yet  the  foundation  of  all  his  political  belief  rests 
upon  the  rejection  of  the  corner-stone  of  democracy, 
the  belief  in  the  principle  of  the  supremacy  of  the 
majority.  Prom  the  days  of  the  Constitutional  Con- 
vention there  had  been  an  incongruous  alliance  of 
men  of  conflicting  views.  In  the  Convention  itself, 
the  men  of  the  small-State  party,  advocates  of  State- 
Rights,  allied  themselves  in  the  main  with  the  ad- 
vocates of  democracy;  the  alliance  was  made  per- 
manent by  Jefferson  and  carried  to  the  point  of 
absurdity  by  Calhoun. ^  State-Rights  and  democracy 
are  in  an  irrepressible  conflict  and  the  strictest  of 
the  strict  constructionists  was  a  Democrat  in  name 
only!  The  great  principles  of  modern  democracy, 
the  equality  of  all  men,  the  rule  of  the  numerical 
majority,  and  manhood  suffrage  did  not  kindle  his 
soul  with  a  glow  of  enthusiasm.     He  was  an  aris- 

1  Oliver,  Alexander  Hamilton,  p.  151. 


John  C.  Calhoun  201 

tocrat  in  feelinj*  and  belief,  tliough  lie  would  have 
been  the  last  to  admit  it.  He  believed  himself  a 
Democrat  because  he  cheated  himself  with  words;  the 
shadow,  not  the  substance  of  democracy,  pleased  his 
fancy;  the  outward  form,  not  the  inner  reality  of 
his  principles,  was  democratic. 

To  soften  the  sharp  edge  of  Nullification  and  the 
rule  of  a  minority,  Calhoun  developed  the  idea  of  a 
"  concurrent  majority.''  ^  The  rule  of  a  numerical 
majority  he  regarded  as  capable  of  the  greatest  tyr- 
anny. Had  he  not  experienced  its  evil  effects  in 
South  Carolina?  For  jjrotection  against  such  pos- 
sible tyranny,  he  would  put  it  in  the  power  of  the 
minority  to  protect  itself,  or  rather  he  would  do  away 
with  the  rule  of  the  numerical  majority  and  in  its 
place  he  would  set  an  intricate  system  for  the  repre- 
sentation of  interests,  so  that  both  numbers  and 
interests  must  concur  in  all  legislation. 

The  application  of  such  a  principle,  as  Webster 
rightly  declared,  was  to  substitute  the  control  of 
the  minority  for  that  of  the  majority,  and  to  over- 
throw democracy  as  it  had  been  known  and  accepted 
since  the  formation  of  the  Constitution.  However 
excellent  the  idea  of  the  concurrent  majority  may 
have  been,  it  was  not  democratic  and  it  was  folly  to 
call  by  the  name  of  democracy  a  theory  which,  when 
applied  to  the  Federal  Government,  rendered  it  pos- 
sible for  a  few  States  to  prevent  all  action  on  the 
part  of  the  government. 

To  some  extent,  Calhoun  as  well  as  Webster, 
sought  the  proofs  of  his  view  of  the  nature  of  the 
Union  in  the  Constitution  itself,  but  he  differed  from 

1  Works,  i.,  27  ff. 


202  Story  of  the  Constitution 

Webster  in  that  with  him  the  argument  from  the 
Constitution  itself  is  subsidiary  in  character;  it  is 
not  the  primary  and  fundamental  proof;  that  is  to 
be  found  in  the  principle  that  underlies  all  govern- 
ments. Calhoun  starts  with  a  radical  departure 
from  the  principles  of  the  school  of  political  philo- 
sophy that  had  gone  almost  unquestioned  for  so 
many  years  and  tliat  had  been  the  faith  of  the 
"  Fathers "  of  the  Constitution.  The  doctrine  of 
the  social  contract  as  the  basis  of  society  and  of  gov- 
ernment had  been  almost  universal  among  English- 
speaking  peoples  since  the  days  of  John  Locke;  for 
the  French  it  had  been  a  national  fetish  since 
Kousseau.  Calhoun  rejected  this  theory  and  under 
the  influence  of  the  changed  basis  of  the  world's 
philosophical  thought,  of  which  he  himself  was  per- 
haps unconscious,  he  barkens  back  to  Aristotle  and 
declares  that  man  is  by  nature  a  political  animal 
and  must  live  in  society  if  he  live  at  all.^ 

The  rejection  of  the  contract  theory  of  society 
sounds  paradoxical  in  a  man  who  personifies  the  con- 
tract theory  of  the  Constitution.  If  there  is  any  one 
fact  about  Calhoun's  political  ideas  that  is  more 
widely  known  than  any  other,  it  is  that  he  believed 
the  Constitution  was  a  compact.  The  same  belief 
was  held  by  the  majority  of  the  members  of  the  Con- 
stitutional Convention  and  the  Constitution  was  re- 
])eatedly  declared  to  be  both  a  social  compact  for 
the  establishment  of  society,  and  a  political  contract 
for  the  institution  of  a  particular  kind  of  govern- 
ment.     From  the  general  principle  of   the  natural 

1  Works,  i.,  1  ff. 


John  C.  Calhoun  203 

law  seliool,  that  unanimity  was  necessary  to  estab- 
lish the  contract,  the  principle  was  deduced  that  it 
could  not  be  dissolved  except  by  unanimous  consent; 
in  this  fashion  an  argument  had  been  drawn  by 
jNIadison  to  demonstrate  the  change  that  had  been 
brought  about  in  tlie  nature  of  the  Union  by  the 
adoption  of  the  present  Constitution. 

Such  a  view  was  utterly  at  variance  with  Calhoun's 
theory;  for  him  society  was  natural  and  necessary; 
some  form  of  political  organization  was  essential; 
the  choice  was  not  between  government  and  no  gov- 
ernment, but  between  the  various  forms  of  govern- 
ment ^ ;  the  Constitution,  therefore,  could  not  be  a 
contract  for  the  establishment  of  society  but  of  gov- 
ernment. From  this  standpoint  Calhoun  was  re- 
lieved from  the  necessity  of  refuting  the  general 
argument  regarding  the  unanimity  necessary  for  tlie 
dissolution  of  the  contract.  Further,  if  the  Consti- 
tution was  not  a  social  contract,  then  it  did  not 
necessarily  follow  that  the  contracting  parties  were 
the  individuals  living  under  it,  and  it  became  a  rela- 
tively easy  matter  to  construct  an  argument  from 
the  historical  circumstances  surrounding  the  making 
and  the  adoption  of  the  Constitution,  which  set  forth 
in  very  plausible,  not  to  say  convincing,  form,  the 
view  that  the  contracting  parties  were  the  sovereign 
states.^ 

It  has  been  said  with  a  great  deal  of  truth  that  if 
you  admit  the  correctness  of  Calhoun's  premises,  you 
cannot  consistently  reject  his  conclusions.  The  char- 
acter of  his  mind  was  extremely  logical — too  logical 

^  Works,  l,  2. 
^Ibid.,  i.,  111. 


204  Story  of  the  Constitution 

to  permit  of  his  being  a  really  great  statesman,  for 
his  devotion  to  logical  sequence  led  him  to  lose  sight 
of  the  movements  of  history,  which  do  not  always 
fall  within  the  bounds  of  a  logical  course.  Even  had 
Calhoun's  view  been  the  correct  one  at  the  time  of 
the  adoption  of  the  Constitution,  it  was  no  longer 
so.  There  had  been  developed  a  strong  national  feel- 
ing that  had  availed  itself  of  the  possibilities  of  the 
Constitution  to  realize  itself  in  the  forms  and  prac- 
tices of  a  national  state.  Calhoun  failed  to  take  ac- 
count of  this  feeling  or  imagined,  for  a  time  at  least, 
that  it  could  be  turned  back  in  its  course. 

However  much  one  may  differ  from  Calhoun  in  his 
views  of  the  nature  of  the  Union,  the  time  is  past 
when  anything  but  the  most  patriotic  motives  can 
be  attributed  to  him.  Narrow,  twisted,  perverse, 
even  sectional,  as  his  views  may  have  been,  to  him 
they  were  genuine  and  begotten  of  an  intense  love 
for  what  he  regarded  as  the  only  true  and  lasting 
form  of  Union.  Our  regret  must  be  that  his  con- 
ception of  patriotism  was  so  distorted.  He  saw  in 
a  league  of  States,  in  a  confederacy,  all  those  guaran- 
tees of  liberty  and  security  wliich  we  regard  as  the 
peculiar  blessing  of  an  "  indissoluble  union  of  inde- 
structible States." 

The  rejection  by  Calhoun  of  tlie  principle  of  the 
social  contract  as  the  basis  of  society  had  a  far  deeper 
significance  for  his  whole  conception  than  at  first 
sight  would  be  apparent.  It  indicated  not  only  a 
change  of  view  regarding  the  nature  and  origin  of 
societ,y,  but  also  a  complete  change  in  the  entire 
philosophical  basis  of  his  thought;  it  denoted  the  as- 
sumption of  a  new  standpoint  from  which  to  judge 


John  C.  Calhoun  205 

of  political  phenomena,  it  marked  the  beginning  of 
the  organic  theory  as  it  was  awakened,  first  by  the 
historical,  and  later  by  the  biological,  character  of 
men's  thought,  working  under  the  influence  of  evo- 
lution. In  place  of  the  purely  mechanical  concep- 
tion of  society,  which  placed  the  union  of  its  atoms 
in  an  act  of  will,  in  a  legal  volition,  Calhoun  set 
the  immutable  principles  of  human  nature  and  dis- 
tinguished sharply  between  the  action  of  law  and  of 
nature.^ 

With  this  distinction  in  mind,  Calhoun  declared 
the  Constitution  to  be  a  compact  and  that  the  only 
result  of  a  compact  was  a  compact.  Nowhere  is  the 
fundamental  difference  in  thought  between  Webster 
and  Calhoun  more  clearly  shown  than  in  this  par- 
ticular. Webster,  grasping  the  full  significance  of 
the  national  sentiment  that  had  been  developed  un- 
der the  Constitution,  yet  stands  upon  the  same  plane 
of  thought  regarding  the  nature  of  political  action 
as  did  the  makers  of  the  Constitution,  and  main- 
tained that  the  Constitution  was  a  compact,  if 
thereby  no  more  is  meant  than  agreement,  but  the 
result  of  that  agreement  is  a  government.  Calhoun, 
from  the  new  standpoint  of  all  his  thought,  also  de- 
clared the  Constitution  to  be  a  compact,  but  the  con- 
clusion he  draws  is  that  the  only  result  of  a  contract 
is  a  contract,  and  that  therefore  no  State  could  have 
been  created  by  the  Constitution,  but  only  an  alliance 
W'hose  common  agent  was  the  Federal  Government. 

Madison  lived  long  enough  to  see  the  confusion 
that  was  arising  from  this  use  of  old  words  with  a 

1  Cf.  McLaughlin,  The  Social  Compact  and  Constitutional 
Construction,  in  American  Historical  Review,  April,  1900. 


2o6  Story  of  the  Constitution 

new  meaning.  To  the  one  side,  contract  was  the 
old  and  immemorial  fashion  in  which  governments 
had  been  set  up,  the  fashion  that  had  been  conse- 
crated by  the  Declaration  of  Independence,  To  the 
other,  it  w^as  impossible  that  a  contract  should  do 
more,  or  be  more,  than  a  contract  at  law,  which  con- 
fessedly could  not  create  anything  by  its  terms  save 
obligations  upon  the  parties. 

To  the  followers  of  Calhoun  the  Constitution,  then, 
was  a  contract  or  compact  which  united  sovereign 
states  into  a  league,  thereby  imposing  upon  them 
certain  obligations  and  conferring  upon  them  certain 
rights  and  duties.  The  measure  of  the  obligation 
must  rest  in  the  judgment  of  the  contracting  parties. 
A  sovereign  State  was  the  final  judge  of  its  own 
competence;  sovereignty  meant  the  final  and  ultimate 
power  of  judgment;  it  was,  therefore,  one  and  indi- 
visible;— to  divide  it  was  to  destroy  it.^  The  issue 
was  sharply  drawn  and  the  old  theory  of  a  divided 
sovereignty  was  rejected.  Was  the  Federal  State 
sovereig-n  or  did  sovereignty  lie  in  the  individual 
States?  Calhoun  did  not  hesitate  to  ascribe  sov- 
ereignty to  the  individual  States  and  to  deny  to  the 
Union  all  right  and  title  to  such  a  power.  That  lie 
was  wrong  only  war  could  settle,  and  that  only  for 
the  future! 

No  consideration  of  Calhoun's  influence  upon  the 
history  of  our  constitutional  development  can  omit 
a  review  of  his  position  on  slavery.  We  have  seen 
that  in  his  earlier  years  he  was  strongly  national  in 
his  thought  and  feeling,  while  in  his  later  years  under 

^  Works,  i.,  146;  "  Sovereignty  is  an  entire  thing; — to  divide, 
is,— to  destroy  it."     Cf.  Madison,  Letters,  etc.,  iv.,  61  and  419. 


John  C.  Calhoun  207 

tlie  name  of  Union,  lie  sought  to  give  power  to  a 
section  and  was  forced  to  replace  a  national  ideal 
by  that  of  a  confederacy.  The  cause  of  this 
change  was  slavery,  that  "  peculiar  institution " 
whose  security  became  the  passion  of  his  life.  Its 
existence  he  at  lirst  defended,  as  did  most  other  men 
of  the  South,  as  an  institution  protected  by  the  Con- 
stitution ;  but  subtle  forces  were  at  work  which  trans- 
formed the  ideas  of  the  South.  Slavery  came  to  be 
regarded  not  merely  as  an  economic  necessity, 
guaranteed  by  the  Constitution,  but  as  a  "  positive 
good,"  as  Calhoun  so  often  asserted.^ 

Convinced  of  the  necessity  of  slavery,  his  every 
effort  was  devoted  to  its  defence.  Inspired  with  a 
love  of  his  country,  he  predicted  with  the  voice  of 
a  seer  the  conflict  that  must  come  unless  slavery 
were  secured  beyond  the  possibility  of  disturbance. 
To  save  the  Union  and  to  render  slavery  safe,  he 
proclaimed  Nullification  in  1833;  to  guarantee  the 
pernmuence  of  equality  between  the  North  and  the 
South,  to  maintain  that  equilibrium  he  regarded  as 
essential,  he  became  Secretary  of  State  in  1844  for 
the  express  purpose  of  bringing  Texas  into  the 
Union ;  to  maintain  the  same  equilibrium  he  opposed 
the  admission  of  California  as  a  free  State  and,  when 
liis  efforts  to  prevent  it  proved  unavailing,  his  voice 
was  that  of  a  Cassandra,  proclaiming  swift  destruc- 
tion to  ears  that  heeded  not.  With  his  last  words 
in  the  Senate,  three  weeks  before  his  death,  he  uttered 
a  final  appeal  to  his  countrymen  to  avoid  the  dangers 
of  disunion  that  threatened  from  all  sides.  His 
remedy    was    an    amendment    to    the    Constitution, 

1  Von  Hoist,  op.  cit.,  p.  164  ff. 


2o8  Story  of  the  Constitution 

which,  as  was  afterwards  discovered,  provided  for  a 
double  Executive,  a  Northern  and  a  Southern  Presi- 
dent, each  witli  a  power  of  veto  upon  legislation  hos- 
tile to  his  section.  An  idle  and  visionary  scheme! 
A  chimera  in  the  realm  of  constitutional  law!  A 
last  attempt  to  avoid  the  irrepressible  conflict  by 
legislative  enactment,  to  smother  a  growing  moral 
sentiment  beneath  constitutional  formalism,  to  pre- 
vent disunion  by  destroying  the  nation ! 


X 

Abraham  Lincoln.      Growth  through 
Civil  War 


209 


ABRAHAM  LINCOLN 


1809.     Feb.  12. 
1816. 

1830. 
1832. 

1833. 

1834. 

1834-42. 

1837. 

1847-49. 

1854. 

1858. 

1860. 

1861-65. 

1863.     Jan.     1. 

1864. 

1865.     April  14, 

April  15. 


Born   in   Kentucky. 

Removed  to  Indiana. 

Removed  to  Illinois. 

Elected  captain  of  volunteers  in   Black  Hawk 

War. 
Postmaster  in  New  Salem. 
Deputy  surveyor  of  Sangamon  County. 
Representative  in  State  Legislature. 
Admitted  to  Bar.     Settled  in   Springfield. 
Representative  in  Congress. 
Representative  in  State  Legislature. 
Douglas  debates. 
Elected  President. 
Civil  War. 

Issued   Emancipation   Proclamation. 
Re-elected  President. 
Shot  by  John  Wilkes  Booth  in  Ford's  Theatre, 

Washington. 
Died. 


Abraham  Lincoln.     Growth  through 
Civil  War 

THE  ten  years  following  Calhoun's  death  brought 
a  startling  fultilment  of  his  prophetic  utter- 
ances on  the  slavery  question.  The  Compromise  of 
1850  resulted  in  only  a  temporary  cessation  of  tlie 
agitation  ;  the  effort  to  silence  the  voice  of  an  awaken- 
ing moral  conscience  b}^  legislation  proved  futile,  and 
in  1854  the  Kansas-Nebraska  Bill,  repealing  the  Mis- 
souri Compromise  and  throwing  open  to  slavery  vast 
regions  of  tlie  Northwest,  more  than  undid  all  the 
good  that  had  been  accomplished  by  the  compromises 
of  former  years.  Tlie  fight  for  "  bleeding  Kansas  " 
stirred  both  North  and  South  to  a  deptli  before  un- 
known and  aroused  hatreds  and  animosities  that 
boded  ill  for  the  nation's  future.  The  fratricidal  strife 
which  Calhoun  had  foreseen  was  already  imminent, 
and  the  vision  he  had  shuddered  at  would  soon  be 
realized  unless  some  solution  of  the  question  of  the 
extension  of  slavery  could  be  reached.  Douglas's 
doctrine  of  "  Squatter  Sovereignty "  proved  a  de- 
lusion. Its  sole  merit  was  that  it  furnished  the 
occasion  that  made  Lincoln  a  national  figure. 


2  12  Story  of  the  Constitution 

Born  in  Kentucky  of  a  family  whicb  lie  himself  de- 
signated as  of  the  second  rank,  Lincoln  early  moved 
with  his  parents  to  Indiana  and  later  to  Illinois.^ 
The  story  of  his  poverty  and  privation,  of  his  struggle 
for  an  education  under  the  most  adverse  circum- 
stances and  of  his  final  success  is  so  well  known  as 
not  to  need  recounting.  Bred  of  a  non-slavehold- 
ing  stock  and  reared  among  a  free-State  people,  Lin- 
coln had  from  early  manhood  a  deep-rooted  conviction 
of  the  evils  of  slavery.  As  time  passed,  this  moral 
conviction  was  strengthened  and  took  shape  politi- 
cally in  a  literal  acceptance  of  the  words  of  the 
Declaration  of  Independence  that  "  all  men  are 
created  equal."  These  words  became  the  inspiration 
of  all  his  political  action  from  his  entrance  into 
politics  to  his  tragic  death  in  1865. 

After  a  brief  term  of  service  in  the  State  Legisla- 
ture, Lincoln  was  elected  as  a  Whig  to  a  seat  in  the 
House  of  Representatives  in  1846.  His  attitude 
toward  the  Mexican  War  was  what  might  have  been 
expected.  Though  he  was  willing  to  support  it  with 
his  vote  when  it  came  to  a  question  of  men  or  sup- 
plies, he  was  unwilling  to  accept  the  view  that  the 
war  was  one  of  defence  and  undertaken  solely 
because  of  Mexican  aggression.  Such  an  attitude 
violated  his  every  instinct  of  justice  and  his  course 
of  opposition  rendered  his  re-election  impossible.- 
From  this  time  till  his  nomination  for  Senator  by 
the  Republicans  of  Illinois  in  1858,  Lincoln  pursued 

1  For  biographies,  see  Nicolay  and  Hay,  J.  T.  Morse,  Jr.,  and 
Ida  M.  Tarbell. 

2  For  the  so-called  "  Spot  Resolutions,"  see  Works,  i.,  p.  318; 
Mexican  War  Speech,  i.,  327. 


Abraham  Lincoln  213 

the  practice  of  law  without  accjuiring  more  than  a 
moderate  reputation  or  success.  He  had,  however, 
tirmly  established  a  reputation  for  good  sense  and 
good  humor,  for  large-mindedness,  and  for  an  un- 
selfish honesty  that  won  for  him  the  affectionate 
nickname  of  "  Honest  Abe." 

Lincoln's  views  on  slavery  were  well  known.  He 
hated  it  as  an  institution  and  regarded  its  continued 
existence  as  a  curse  upon  a  free  country,  yet  he  saw 
no  means  of  getting  rid  of  it  except  by  the  action 
of  the  slaveholding  States  themselves.  The  Consti- 
tution had  recognized  its  existence;  this  very  recog- 
nition had  been  part  of  the  price  paid  for  Union  and 
he  believed  in  keeping  the  bargain. 

Within  each  State  the  general  government  had  no 
control  over  domestic  institutions,  but  within  the  na- 
tional Territories,  he  thought  the  matter  was  quite 
different.  There  was  no  reasonable  doubt  to  his  mind 
that  Congress,  from  the  Ordinance  of  1787  till  the 
Kansas-Nebraska  Bill  of  1854,  had  had  the  power 
and  had  exercised  it,  of  prohibiting  slavery  in  the 
Territories.^  The  "  Fathers  "  of  the  Constitution,  he 
thoroughly  believed,  were  persuaded  of  the  evil  of 
slavery  and  that  its  existence  would  be  of  short 
duration.  Had  the  Constitution  not  forbidden  the 
foreign  slave  trade  after  the  year  1808?  Had  not 
the  Northwest  Territory  been  made  free  forever? 
AVas  there  not  every  reason  to  believe  that  emancipa- 
tion would  take  place  in  the  South  as  it  had  done 
in  the  North?  That  the  framers  of  the  Constitution 
could  have  wished  to  perpetuate  slavery  was  in- 
credible  to  him.      How  much   less  could  they  have 

1  C/.  speech  at  Peoria,  Oct.  16,  1854,  Works,  ii.,  190  ff. 


214  Story  of  the  Constitution 

intended  to  extend  it!  But  tlie  repeal  of  the  Mis- 
souri Compromise  by  the  Kansas-Nebraska  Bill 
threw  open  the  Territories  to  the  possibility  of 
slavery;  the  Dred  Scott  decision  M^ent  a  step  further 
and  proclaimed  the  impotency,  both  of  Congress  and 
of  the  territorial  Legislatures,  to  prohibit  slavery 
within  the  national  domain. 

Dred  Scott,  it  will  be  recalled,  was  a  slave  who  had 
been  taken  by  his  master  from  Missouri  into  a  free 
Territory,  and  after  several  years  spent  there  had 
been  brought  back  to  Missouri.^  He  entered  suit  for 
his  freedom  and  the  case  went  to  the  Supreme  Court 
on  a  question  of  jurisdiction.  Chief  Justice  Taney 
in  delivering  the  judgment  for  the  Court  did  not  con- 
fine himself  to  the  immediate  question  at  issue,  but, 
after  declaring  that  Dred  Scott  was  not  a  citizen  in 
the  meaning  of  the  Constitution  and  therefore  had 
no  right  before  the  Court,  went  on  to  establish  the 
doctrine  that  slaves  were  property,  that  the  Consti- 
tution provided  that  no  man  could  be  deprived  of 
his  life,  liberty,  or  property  without  due  process  of 
law,  and  that  therefore  it  was  beyond  the  competence 
of  Congress  or  of  the  territorial  Legislatures  to  for- 
bid the  carrying  of  slaves,  the  owner's  property, 
within  the  limits  of  any  Territory.  By  the  obiter 
dicta  of  this  decision  the  free  Territory  was  no  longer 
free ;  by  it  slavery  was  extended  to  all  the  Territories, 
whether  they  desired  it  or  not,  and  only  when  a  Terri- 
tory became  a  State  could  it  abolish  slavery  within 
its  limits.^ 

1  For  the  decision,  see  19  Howard  393.  See  abstract  in  the 
Appendix. 

2  Cf.  Johnston,  American  Political  History,  ii.,  p.  169  ff. 


Abraham  Lincoln  215 

It  was  tlio  ovidont  iuteutioii  of  tlie  Court  10  attoiiipt 
a  liiial  soliitiou  of  the  slavery  question.  Tlie  attempts 
of  the  Executive  and  of  Congress  to  effect  a  per- 
manent settlement  had  ])roved  only  partially  success- 
ful, and  in  the  mind  of  the  Court,  as  of  the  rest  of 
the  country,  it  was  most  desirable  that  some  final 
settlement  should  be  reached,  so  that  peace  might 
come  again.  The  folly  of  the  Supreme  Court's  at- 
tempt to  give  final  form  by  judicial  decision  to  the 
great  moral  and  political  question  involved  soon  be- 
came ax)parent.  It  was  not  only  the  throwing  open 
of  free  Territory  to  slavery  that  stirred  men  like 
Lincoln  to  determined  opposition  to  the  political  re- 
sults of  this  decision.^  They  were  equally  opposed 
to  the  doctrine  which  would  rob  the  slave  of  his 
character  as  man  and  condemn  him  forever  to  the  po- 
sition of  a  mere  chattel.  Lincoln's  moral  sense  rebelled 
against  the  idea  and  the  history  of  his  country  taught 
him  that  the  Declaration  of  Independence  meant 
what  it  said,  and  that  its  "  all  men  are  created  equal," 
included  negroes  as  well  as  whites.  And  none  could 
deny  the  presence  of  free  negroes  at  the  time  of  the 
adoption  of  the  Constitution  or  that  they  had 
continued  to  that  day. 

Lincoln  regarded  the  Dred  Scott  decision  as  the 
second  step  in  a  movement  by  the  South  to  make  the 
whole  country  slave;  the  first  was  the  repeal  of 
the  Missouri  Compromise  by  which  free  Territories 
were  thrown  open  to  slavery,  the  Dred  Scott  decision 
marked  a  further  advance  in  depriving  Congress  and 
the  Territories  of  the  right  to  forbid  slavery  within 
their  limits;  the  third  and  last  step  he  apprehended 

1  Works,  ii.,  321  ff. 


2i6  Story  of  the  Constitution 

would  be  to  throw  open  to  slavery  by  judicial  de- 
cision or  by  congressional  enactment  not  only  the 
free  Territories  but  the  free  States  as  well.^ 

The  possibility  of  such  a  culmination  to  the  pro- 
cess of  slavery  extension  filled  him  with  horror,  and 
he  eagerly  took  advantage  of  the  formation  of  the 
new  Republican  party  to  be  among  the  first  to  espouse 
its  principles  and  to  ally  himself  with  the  party  which 
its  opponents  delighted  to  stigmatize  as  "  black." 
His  position  in  Illinois  and  his  relation  to  the  party 
brought  him  the  Republican  nomination  in  1858  for 
Senator  to  contest  the  seat  then  filled  by  Senator 
Douglas.^ 

The  rivalry  of  Lincoln  and  Douglas  had  begun  in 
their  early  manhood  and  continued  till  the  election 
of  1860 ;  it  was  a  rivalry  in  love  as  well  as  in  politics, 
in  character  and  disposition  as  well  as  in  policies 
of  national  welfare.  Douglas  far  outstripped  his 
competitor  in  the  early  stages  of  their  careers,  and 
while  Lincoln  was  still  an  unknown  country  lawyer 
in  central  Illinois,  Douglas  was  one  of  the  leaders 
of  the  Senate  and  a  figure  of  national  prominence. 
As  a  Northern  Democrat,  Douglas  had  fathered  the 
Kansas-Nebraska  Bill  and  the  repeal  of  the  Missouri 
Compromise  in  1854 ;  he  was  the  author  of  the  doc- 
trine of  "  Popular  Sovereignty  "  which  asserted  for 
the  Territories  the  right  to  determine  for  themselves 
whether  or  not  slavery  should  be  permitted  within 
their  borders;  no  one  espoused  more  heartily  than 
he  the  dicta  of  the  Dred  Scott  decision,  though  he 

1  Works,  iii.,  3  ff. 

^Cf.  Nicolay  and  Hay:  Abraham  Lincoln;  A  History,  ii., 
135    ff. 


Abraham  Lincoln  217 

failed  to  perceive  the  logical  contradiction  between 
that  decision  and  his  pet  doctrine  of  "  Popular 
Sovereignty." 

Lincoln,  on  the  other  hand,  was  touched  by  the 
rising  tide  of  oi)inion  against  the  extension  of 
slavery;  he  was  in  no  sense  an  abolitionist,  for  he 
recognized  the  constitutional  guarantees  of  slavery 
as  a  domestic  institution  within  the  States,  but  he 
believed  in  the  right  and  power  of  Congress  to  for- 
bid its  presence  in  the  Territories. 

A  series  of  joint  debates  was  arranged  between 
these  champions  of  opposing  principles,  and  the  Lin- 
coln-DougiC".  Debates  of  1858  are  second  only  to  the 
Webster-Hayne  Debates  in  the  political  annals  of 
our  country.^  Lincoln  was  defeated  but  in  losing 
the  Senatorship  he  won  the  Presidency. 

The  debates  centred  around  the  great  question  at 
issue,  that  of  the  extension  of  slavery.  Douglas  up- 
held the  principle  of  "  Popular  Sovereignty "  and 
the  Dred  Scott  decision.  Lincoln  grasped  the  incon- 
sistency of  Douglas's  position  and  propounded  to  him 
a  series  of  questions  the  answers  to  which  disclosed 
the  inconsistency  and  placed  Douglas  in  a  dilemma 
from  which  he  could  not  extricate  himself  except  at 
the  cost  of  losing  the  support  either  of  the  North  or 
of  the  South.  The  most  famous  of  these  questions 
and  the  one  central  to  the  discussion  was  in  the  fol- 
lowing words :  "  Can  the  people  of  a  United  States 
Territory,  in  any  lawful  way,  against  the  wishes  of 
any  citizen  of  the  United  States,  exclude  slavery 
from  its  limits  prior  to  the  formation  of  a  State 
constitution?"     To  admit   that  it  could,   would  be 

1  For  the  debates,  see  Works,  iii.,  200-347,  iv.,  and  v.,  1-85. 


2i8  Story  of  the  Constitution 

to  reject  the  Dred  Scott  decision  and  to  alienate  the 
Soutli.  To  deny  that  it  could  not,  was  to  demolish 
his  own  doctrine  of  Popular  Sovereignty  and  to  lose 
the  support  of  the  North.  Douglas  chose  the  former, 
though  he  sought  to  conceal  it  under  the  guise  of  the 
principle  of  "  unfriendly  legislation,"  which  came  to 
be  known  as  the  "  Freeport  heresy."  ^  By  this, 
Douglas  meant  that,  though  the  people  of  a  Territory 
could  not  by  statute  exclude  slavery,  yet  that  slavery 
could  not  exist  in  a  Territory  without  friendly  legis- 
lation, legislation  of  such  a  character  as  to  call  into 
being  the  exercise  of  the  police  power  to  protect  it. 

It  was  the  answer  Lincoln  had  been  seeking;  at  a 
conference  of  Republican  leaders  the  night  before 
the  Freeport  debate,  Lincoln,  according  to  tradition, 
was  urged  not  to  ask  this  question,  for  fear  he  would 
lose  the  prize  for  which  he  was  contending.  "  I  am 
killing  larger  game,"  he  said ;  "  the  battle  of  1860  is 
worth  a  hundred  of  this."  ^  Lincoln  was  right  in 
his  prophecy.  The  South  would  never  accept  for 
President  a  man  who  had  proclaimed  such  a  doc- 
trine. Senator  Benjamin  of  Louisiana,  in  a  speech 
in  the  Senate  on  May  22,  1800,  accused  Douglas  of 
having  broken  faith  with  the  South  and  fitly  de- 
scribed the  situation  when  he  said:  "The  Senator 
from  Illinois  faltered.  He  got  the  prize  for  which 
he  faltered;  but  lo,  the  prize  of  his  ambition  slips 
from  his  grasp  because  of  the  faltering  which  he  paid 
as  the  price  for  tlie  ignoble."  ^ 

1  For  Lincoln's  questions,  see  Works,  iii.,  273-4,  and  for 
Douglas's  idea  of  "  unfriendly  legislation,"  iii.,  297. 

-  Nicolay  and  Hay,  ii.,  160. 

•"'  Congressional  Globe,  first  session  36th  Congress,  1859-1860, 
p.  2241. 


Abraham  Lincoln  219 

The  result  of  these  debates  ina<le  Lincoln  a  fijTjnre 
of  national  prominence  and  the  candidate  of  his  party 
for  the  Presidency  two  years  later.  There  could  be 
no  mistaking  the  attitude  of  Lincoln  and  of  the  Re- 
publicau  party  toward  slavery  in  this  campaign. 
The  issue  was  clearly  stated  in  the  party  platform; 
the  defence  of  the  principles  of  the  Declaration  of  In- 
dependence, "the  maintenance  inviolate  of  the  rights 
of  the  States,  and  especially  the  right  of  each  State 
to  order  and  control  its  own  domestic  institutions 
according  to  its  own  judgment  exclusively,"  as  "  es- 
sential to  that  balance  of  power  on  which  the 
perfection  and  endurance  of  our  political  fabric  de- 
pend " ;  the  condemnation  of  the  new  dogma  "  that 
the  Constitution,  of  its  own  force,  carries  slavery 
into  any  or  all  of  the  territories  of  the  United  States," 
as  "  a  dangerous  political  heresy,"  "  revolutionary  in 
its  tendency,  and  subversive  of  the  peace  and  har- 
mony of  the  country,"  and  that  "  the  normal  condi- 
tion of  all  the  territory  of  the  United  States  is  that 
of  freedom."  ^ 

Slavery  was  recognized  as  a  peculiar  domestic 
institution,  wholly  subject  to  the  control  of  the 
individual  States  within  their  borders,  but  equally 
subject  to  the  control  of  Congress  within  the  Terri- 
tories; it  was  an  evil  and  therefore  to  be  restricted 
to  its  present  area,  that  in  the  course  of  time  it 
might  die  out  altogether,  but  so  long  as  any  State 
desired  to  retain  slavery,  it  might  do  so  free  from 
molestation  from  the  Federal  Government. 

In  his  Cooper  Union  speech  of  February  27,  1860, 

1  T.  J.  McKee,  National  Conventions  and  Platforms,  pp.  113- 
114. 


220  Story  of  the  Constitution 

Lincoln  struck  to  the  lieart  of  the  differences  between 
the  sections.^  It  was  the  nationalization  of  slavery. 
"  Holding  as  they  [the  Southern  people]  do  that 
slavery  is  morally  right  and  socially  elevating,  they 
cannot  cease  to  demand  a  full  national  recognition 
of  it,  as  a  legal  right  and  a  social  blessing.  Nor 
can  we  justifiably  withhold  this  on  any  ground  save 
our  conviction  that  slavery  is  wrong."  "  AYrong  as 
we  think  slavery  is,  we  can  yet  afford  to  let  it  alone 
where  it  is,  because  that  much  is  due  to  the  necessity 
arising  from  its  actual  presence  in  the  nation."  The 
fight  must  be  made  against  the  extension  of  slavery ; 
free  soil  must  remain  free  in  the  Territories  lest  it 
should  cease  to  be  free  in  the  States. 

The  period  from  the  election  in  November  to  the 
inauguration  in  March  was  one  of  great  doubt  and 
uncertainty.  South  Carolina  waited  only  long  enough 
to  hear  the  result  before  setting  in  motion  the  ma- 
chinery to  effect  Secession,  and  on  December  2()tli, 
the  Convention  proclaimed  the  Ordinance  of  Seces- 
sion,- whereby  the  old  ties  were  severed  and  the  Union 
destroyed  so  far  as  South  Carolina  could  effect  it. 
Before  the  4th  of  March,  seven  States  had  seceded 
and  had  established  the  Confederate  States  of 
America,  had  chosen  officials,  had  made  preparations 
for  organizing  an  army  and  navy,  had  seized  the  prop- 
erty of  the  United  States  within  their  limits  and 
were  offering  to  treat  for  a  peaceable  separation.^ 

The  practical  question  assumed  a  different  form 
with  the  completion  of  Secession  and  the  commence- 

1  Works,  v.,  293  ff. 

-  See  Appendix. 

"  Cf.  J.  W.  Burgess,  The  Civil  War  and  the  Constitution. 


Abraham  Lincoln  221 

nient  of  hostilities.  It  was  no  lonj^er  the  extension 
of  slavery;  it  was  tlie  preservation  of  the  Union. 
President  Buchanan  had  been  weak  and  vacillating;; 
he  had  denied,  in  his  message  of  December,  1860,^ 
the  riglit  of  a  State  to  secede,  but  at  the  same  time 
had  as  emphatically  denied  the  right  of  the  Federal 
Government  to  employ  force  against  any  State  that 
might  attempt  Secession.  Driven  by  the  aggressive 
policy  of  the  Secessionists,  he  had  been  obliged  later 
to  take  a  firmer  stand  with  respect  to  the  power  of 
the  Union  to  execute  its  laws  and  to  retain  control 
of  its  property  even  at  the  risk  of  war. 

Lincoln's  inaugural  address  was  unwavering  on  the 
question  of  the  extension  of  slavery^ ;  there  must  be  no 
compromise  on  the  question  of  its  restriction,  but 
equally  must  there  be  no  encroachment  upon  its  ex- 
istence within  the  States.  But  slavery  for  the  moment 
had  ceased  to  be  the  great  issue.  It  had  yielded  to 
Secession.  Could  a  State  lawfully  withdraw  from  the 
Union?  Was  the  nature  of  the  Union  such  that  it 
could  not  prevent  its  own  destruction?  Were  the 
States  joined  in  mere  alliance  or  in  the  indissoluble 
bond  of  a  Federal  State?  This  was  the  question, 
agitated  since  the  foundation  of  the  Republic,  which 
at  last  was  to  be  put  to  the  test  of  war.  The  threat 
of  three  quarters  of  a  century  had  at  length  become 
a  reality! 

Lincoln's  attitude  toward  Secession  was  clear  from 
the  start,  and  the  words  of  his  first  inaugural  char- 
acterized it  as  rebellion  and  revolution.     The  Union 

1  Messages  and  Papers  of  the  Presidents,  v.,  635  ff.  Cf.  Bur- 
gess, The  Civil  War  and  the  Constitution,  i.,  82  ff. 

2  Works,  vi.,  169  ff. 


222  Story  of  the  Constitution 

of  the  States  lie  regarded  as  perpetual.  Never  had 
any  government  had  a  provision  for  its  own  destruc- 
tion embodied  in  its  organic  law,  and,  even  if  the 
Constitution  were  a  contract,  it  could  not  peaceably 
be  dissolved  without  the  consent  of  all.  "  One  party 
to  a  contract  may  violate  it — break  it,  so  to  speak; 
but  does  it  not  require  all  to  lawfully  rescind  it?  "  ^ 
But  to  Lincoln's  mind  the  Constitution  was  not  a 
contract  by  which  sovereign  States  had  been  leagued 
together.  It  was  only  the  last  step  in  the  process  of 
union  which  had  begun  in  1774.  "  The  Union  is 
much  older  than  the  Constitution,"  he  asserted,  and 
one  of  tlie  declared  objects  of  the  establishment  of 
the  Constitution  was  "  to  form  a  more  perfect  Union." 
The  same  opinion  he  elaborated  in  his  first  message 
to  Congress  in  language  that  is  familiar  to  all.  "  The 
States  have  their  status  in  the  Union,  and  they  have 
no  other  legal  status.  If  they  break  from  this,  they 
can  only  do  so  against  law  and  by  revolution.  The 
Union,  and  not  themselves  separately,  procured  their 
independence  and  their  liberty  .  .  .  The  Union  is 
older  than  any  of  the  States,  and,  in  fact,  it  created 
tliem  as  States."  ^ 

Tlie  conclusions  that  Lincoln  drew  from  these 
premises  are  evident.  Secession  was  a  sophism,  rest- 
ing upon  the  fallacy  that  there  was  at  some  former 
time  a  number  of  sovereign  States,  a  number  of  politi- 
cal communities  without  a  political  superior,  which 
mutually  surrendered  a  portion  of  their  rights, 
but  not  their  sovereignty,  and  having  retained  this, 
might,  therefore,  legally  withdraw  from  the  Union 

^  Works,  vi.,  174. 
2  Ibid.,  vi.,  315. 


Abraham  Lincoln  223 

by  resuminii;  the  ])()wer.s  oranted  to  it.  Lincoln's 
theory  left  no  ground  for  the  legal  dissolution  of  the 
Union.  If  the  States  never  had  any  existence  out- 
side (he  Union,  if  ''the  Union  is  older  than  any  of 
the  States,  and,  in  fact,  .  .  .  created  them  as  States," 
then  they  can  have  rights  outside  of  it  only  by  de- 
stroying it,  by  revolution,  by  rebellion.  Furthermore 
it  follows  that  Secession  Ordinances  are  null  and 
void,  and  have  no  legal  effect  whatever  upon  the 
relation  of  a  State  to  the  Union.  That  relation  per- 
sists so  long  as  the  Union  continues,  and  the  de- 
struction of  the  Uni(m  must  come  from  violence  and 
not  from  law,  for  "  no  government  proper  ever  had 
a  provision  in  its  organic  law  for  its  own  termina- 
tion." Secession  was  rebellion  and  must  be  put 
down  with  all  the  power  of  a  government  fighting 
for  its  life.^ 

The  Union  was  not  only  historically  and  legally 
an  indissoluble  one,  but  also  "  physically  speaking, 
we  cannot  separate."  It  was  not  possible  to  "  build 
an  impassable  wall  "  between  the  sections;  they  couhl 
not,  like  divorcees,  "  go  out  of  the  presence  and 
beyond  the  reach  of  each  other";  they  must  remain 
face  to  face. 

Thus  bluntly  did  Lincoln  make  known  his  attitude 
toward  the  seceding  States.  They  were  still  in  the 
Union  and  could  not  get  out  of  it  till  they  had  suc- 
cessfully resisted  its  efforts  to  execute  its  laws  within 
their  boundaries,  till  the  right  of  revolution  had  once 
more  been  appealed  to  with  success.  The  duty  of  a 
President  holding  such  views  was  clear;  the  use  of 
the  military  and  naval  forces  of  the  Union  to  secure 

'  Cf.  Johnston,  op.  cit.,  ii.,  280  ff.     The  Secession  Movement. 


2  24  Story  of  the  Constitution 

obedience  to  its  laws  was  imperative ;  the  calling  into 
activity  of  the  war-power  became  his  most  solemn 
duty. 

The  way  in  which  Lincoln  met  Secession  and  his 
appeal  for  the  preservation  of  the  Union  thrilled  the 
masses  of  the  North  with  a  patriotic  zeal,  deep  and 
far  reaching.  The  precious  heritage  of  Union  was 
endangered,  the  great  experiment  of  republican  gov- 
ernment was  threatened  with  failure, — had  failed 
many  said, — and  ancient  liberties  and  recent  great- 
ness could  be  preserved  only  by  the  preservation  of 
the  Union.  For  the  time  being  slavery  and  all  its 
vexed  problems  that  had  held  the  boards  for  nearly 
half  a  century,  sank  into  the  background;  a  greater 
and  a  nobler  issue  than  the  extension  of  slavery  was 
to  be  decided ;  the  single  sentiment  of  Union  filled  the 
minds  of  the  North  to  the  exclusion  of  all  else.  Only 
a  few  extremists  still  talked  of  abolition  or  of 
peaceable  dissolution. 

The  exercise  of  the  war  powers  by  the  Executive 
led  almost  at  once  to  a  temporary  military  dictator- 
ship. Under  the  pressure  of  circumstances  and  the 
plea  of  necessity,  the  President,  first  on  his  own  re- 
sponsibility and  then  with  the  sanction  of  Congress, 
assumed  the  exercise  of  powers  which  destroyed  on 
the  one  hand  the  old  balance  between  the  States  and 
the  nation  and  between  the  departments  of  govern- 
ment, and  on  the  other  overstepped  almost  all  the 
guarantees  of  liberty  to  the  individual,  while  the 
theory  of  delegated  powers  lost  all  real  importance 
in  the  presence  of  national  peril. 

This  dictatorship  enabled  Lincoln  to  perform  his 
first  great  service  to  the  Constitution,  that  of  pre- 


Abraham  Lincoln  225 

serving  its  very  existence,  of  settling  in  favor  of  the 
Union  the  divergent  views  which  reached  back  to 
the  Constitutional  Convention,  and  of  making  of  us 
for  all  time  a  sovereign  nation,  a  single  political 
people. 

Though  slavery  had  been  pushed  aside  at  the  out- 
break of  war,  it  could  not  long  remain  in  the  back- 
ground. It  daily  became  more  evident  that  the 
fundamentally  different  views  of  North  and  South 
on  all  manner  of  topics  were  somehow  or  other  rooted 
in  slavery.  It  was  clear  that  the  nation  must  be 
wholly  free  or  wholly  slave  before  there  could  be  the 
homogeneity  of  thought  and  feeling  necessary  for  a 
true  Union.  Nor  was  it  less  clear  that  the  success 
of  the  war  was  intimately  connected  with  the  con- 
tinued existence  of  slavery.  So  long  as  slavery 
continued,  it  was  possible  for  the  South  to  put  its 
maximum  fighting  strength  in  the  field  and  depend 
for  its  support  upon  the  produce  of  slave  labor. 
Likewise  the  North  was  estopped  by  the  existence  of 
the  institution  from  employing  the  blacks  in  its  mili- 
tary forces.  All  these  considerations  bore  with  great 
weight  upon  Lincoln's  attitude  as  expressed  in  his 
inaugural.  It  might  be  true  that  so  long  as  peace 
existed,  the  Federal  Government  could  not  touch 
slavery  in  the  States,  but  with  the  outbreak  of  the 
war,  new  powers  not  previously  contemplated  came 
into  play.  The  doctrine  of  the  "  war-powers  "  of  Con- 
gress and  the  Executive  received  a  rapid  and  none 
too  careful  development.^  Men  did  not  scrutinize 
too  closely  the  constitutionality  of  measures  whose 

1  Cf.  W.  A.  Dunning,  Essays  on  the  Civil  War  and  Recon- 
struction, p.  1  ff. 

IS 


2  26  Story  of  the  Constitution 

object  was  the  maintenance  of  the  Constitution  it- 
self. Lincoln  gave  expression  to  this  attitude  in 
characteristic  fashion  in  speaking  of  the  suspension 
of  the  writ  of  Habeas  Corpus  by  Executive  order 
when  he  asked :  "  Are  all  the  laws  but  one  to  go 
unexecuted,  and  the  government  itself  to  go  to  pieces 
lest  that  one  be  violated?  "  ^ 

Emancipation  bj  proclamation  of  the  President 
was  the  result  of  this  growth  of  powers.^  Avowedly 
a  war  measure,  it  was  made  applicable  only  to  those 
districts  in  revolt  on  the  first  day  of  January,  1863. 
The  war  for  the  Union  gained  great  moral  strength 
when  it  became  also  a  war  for  liberation,  and  the 
Emancipation  Proclamation  takes  rank,  along  with 
the  Declaration  of  Independence,  as  the  second  great 
charter  of  American  freedom.  As  the  latter  was  in- 
sufficient to  secure  the  blessings  of  tlie  liberty  it 
proclaimed  and  needed  to  be  supplemented  by  an  in- 
strument of  government  giving  form  and  stability  to 
its  ideals,  so  the  Emancipation  Proclamation,  bring- 
ing freedom  to  new  millions,  needed  to  be  supple- 
mented by  constitutional  amendments  to  give  it 
lasting  efficiency.  Lincoln  did  not  live  to  see  any 
but  the  first  of  the  new  amendments,  the  thirteenth, 
take  form ;  by  it  slavery  and  involuntary  servitude,  ex- 
cept as  a  punishment  for  crime,  were  forever  banished 
from  the  land. 

Two  great  ideas  filled  Lincoln's  mind:  Union  and 
Liberty.  But  the  Union  was  more  precious  than  the 
liberty  of  the  slaves.     Fiercely  as  he  hated  slavery, 

1  Works,  vi.,  309. 

^  Ibid.,  viii.,  161,  and  Johnston,  op.  cit.,  ii.,  389  ff.  Emanci- 
pation.    For  the  text,  see  the  Appendix. 


Abraham  Lincoln  227 

he  would  nevertheless  save  the  Union  at  the  cost  of 
its  continued  existence.  As  slavery  was  the  price  of 
the  first  acceptance  of  the  Constitution,  so  he  was 
willinj>-  to  make  it  a  part  of  the  second  bari^ain  for 
its  preservation.  But  it  was  not  to  be.  The  South 
refused  all  offers  of  guarantees  for  its  inviolability 
within  the  borders  of  any  State.  The  slaveholding 
States  seemed  bent  on  nothing  short  of  rule  or  ruin, 
on  nothing  less  than  the  complete  acceptance  of 
slavery  everywhere  or  a  violent  dissolution  of  the 
Union.  When  this  became  evident,  Lincoln  seized 
the  opportunity  to  save  the  Union  by  destroying 
slavery. 

Lincoln's  view  of  Reconstruction  followed  nat- 
urally from  his  belief  in  the  indissoluble  character 
of  the  Union. ^  The  States  could  not  possibly  with- 
draw from  the  Union.  The  rebellion  was  the  work 
of  certain  persons  who  had  seized  control  of  the 
State  governments  and  had  unlawfully  made  use 
of  them  for  the  purposes  of  the  rebellion.  So  soon, 
then,  as  the  Federal  Government  should  reassert  its 
authority,  so  soon  as  the  rebellion  should  be  put  down 
and  loyal  governments  be  set  up,  the  old  relations 
would  likewise  be  re-established.  The  States  had 
never  been  out  of  the  Union;  they  could  not,  there- 
fore, be  brought  back  into  it. 

In  accordance  with  this  idea  Lincoln  proclaimed 
the  so-called  "  ten  per  cent,  plan,"  by  which  it  was 
provided  that  any  State  whose  citizens  had  been  in 
rebellion,  might  be  reconstructed  as  loyal,  when  a 
number  equal  to  ten  per  cent,  of  those  who  had  voted 
in    the    election    of    1860    should    take    the    oath    of 

1  Cf.  C.  H.  McCarthy,  Lincoln's  Plan  of  Reconstruction. 


2  28  Story  of  the  Constitution 

allegiance  to  the  United  States,  and  should  proceed 
to  elect  state  officials  and  national  representatives.^ 
A  government  so  constituted  Lincoln  declared  would 
be  recognized  by  the  Executive  as  a  member  of  the 
Union,  and  several  States  were  so  constituted  and 
recognized. 

The  difficulties  of  Reconstruction,  however,  were 
not  to  be  settled  in  any  such  simple  fashion.  Con- 
gress had  its  own  notions  about  the  method  of  pro- 
cedure which  were  radically  different  from  those  of 
President  Lincoln,  and  as  the  Constitution  gives  each 
House  the  exclusive  right  of  judging  of  the  qualifica- 
tions of  its  members,  mere  Executive  recognition  of 
a  reconstructed  State  would  not  be  sufficient  to  rein- 
state it  completely  in  its  old  position ;  it  might  still 
be  kept  out  of  its  representation  in  the  legislative 
councils  of  the  nation. 

How  this  difference  of  opinion  between  the  Presi- 
dent and  Congress  might  have  been  settled  but  for 
the  assassination  of  Lincoln,  it  is  impossible  to  say, 
but  surely  it  would  have  been  settled  in  some  way 
that  would  have  spared  the  South  those  bitter  years 
of  political  debauchery,  that  would  have  spared  our 
country's  history  the  darkest  blot  upon  its  record 
for  political   sagacity — "  Reconstruction." 

1  Works,  ix.,  218  ff. 


XI 

Thaddeus  Stevens.      Growth  through 
Reconstruction 


229 


THADDEUS  STEVENS 

1793.     April     4.  Born  in   Danville,  Vt. 

1814.  Graduated  from  Dartmouth  College. 

Removed  to  Pennsylvania.     Studied  law. 
1829,  Supported  anti-Masonic  party. 

1833-35.  ) 
1837-42    (  Representative  in  Pennsylvania  Legislature. 

1838.  Member  of  State  Constitutional  Convention. 

1842-49.  Practised  law  in  Lancaster. 

1849-53.  Representative  in  Congress. 

1859-68.  Representative  in  Congress. 

1861.  Chairman  of  Committee  on  Ways  and  Means. 

1866.  Chairman  of  House  Committee  on  Reconstruc- 

tion. 

1868.  Chairman    of    Committee    of   Impeachment    of 

Andrew  Johnson. 
Aug.  11.   Died  in  Washington. 


330 


XI 

Thaddeus  Stevens,     Growth  through 
Reconstruction 

WITH  the  death  of  Lincoln  and  the  accession  of 
Andrew  Johnson  to  the  Presidency  the  period 
of  Reconstruction  may  be  said  to  have  begun.  The 
new  President  declared  his  intention  of  following  out 
the  plan  laid  down  by  his  predecessor.  That  plan 
had  not  met  with  tlie  approval  of  Congress  even  when 
advocated  by  Lincoln  ^ ;  much  less  would  it  do  so 
when  tried  by  a  man  of  Johnson's  antecedents  and 
character.  Within  the  space  of  a  few  weeks  after  he 
took  the  oath  of  office,  Johnson  and  Congress  were 
in  bitter  opposition.  Johnson  at  first  had  breathed 
out  fire  and  slaughter  against  the  "  rebels  "  who  must 
be  taught,  he  said,  what  it  meant  to  be  traitors. 
Soon,  however,  he  began  to  court  the  favor  of  the 
South  and  in  proportion  as  his  suit  prospered,  the 
fear  of  the  radical  Republicans  was  aroused  that,  if 
the  seceded  States  should  be  restored  on  the  Lincoln- 
Johnson  plan,  with  no  further  guarantees  of  their 
good  conduct  in  the  future  or  of  the  security  of  the 
freedmen,  the  Democrats  might  easily  gain  control 

1  Cf.  J.  W.  Burgess,  Reconstruction  and  the  Constitution,  p.  15. 

231 


232  Story  of  the  Constitution 

of  Congress  and  the  fruits  of  victory  be  lost  both  to 
the  nation  and  to  the  party. 

The  leader  of  the  radicals  and  of  Congress  in  the 
fight  with  Johnson  was  Thaddeus  Stevens  of  Penn- 
sylvania. At  the  extra  session  of  Congress  which 
met  on  July  4,  1861,  Stevens  was  appointed  Chair- 
man of  the  Committee  on  Ways  and  Means.  This 
Committee  performed  at  that  time  the  duties  now 
performed  by  the  various  appropriation  committees 
as  well,  so  that  the  enormous  task  devolved  upon 
Stevens  both  of  providing  revenue  and  of  determining 
how  it  should  be  spent.  This  position  he  filled 
throughout  the  war  and  became,  in  the  words  of 
Blaine,  "  the  natural  leader  who  assumed  his  place 
by  common  consent." 

Stevens  was  born  in  Vermont  in  1793  and  was 
therefore  at  the  outbreak  of  the  war  at  the  advanced 
age  of  sixty-eight,^  After  graduating  from  Dart- 
mouth College  in  1814  he  had  moved  to  Pennsylvania, 
first  to  teach  school  a;t  York  and  then  to  practise 
law  at  Gettysburg  and  Lancaster.  For  fifteen  years 
he  followed  with  success  the  practice  of  his  profes- 
sion without  evincing  any  particular  interest  in 
politics  and  only  in  1833,  at  the  age  of  forty, 
did  he  receive  his  first  election.  It  was  to  the  Penn- 
sylvania House  of  Representatives  in  which  he  con- 
tinued to  serve  until  1842.  During  this  period 
Stevens  established  his  ability  to  lead  a  legislative 
body  by  his  caustic  wit  and  brilliant  oratory.  His 
speech  in  1835  in  favor  of  free  schools  was  a  re- 
markable effort  which  changed  a  hostile  majority,  not 
only  in  the  House  but  also  in  the  Senate,  the  mem- 

1  Lives  by  McCall  and  Callender. 


Thaddcus  Stevens  233 

bers  of  which  liad  crowded  into  tlie  ITouse  to  hear 
liim,  and  which  firmly  established  the  great  public 
school  system  of  the  State. ^ 

During  these  years  his  views  on  slavery  took  shape 
in  their  final  form.  Living  near  the  dividing  line 
between  the  free  and  the  slave  States,  he  was  a  con- 
stant witness  to  the  struggles  of  the  unhappy  slaves 
to  escape  from  bondage  and  to  the  action  of  the 
Fugitive  Slave  Law  in  dragging  them  back  into  cap- 
tivity. As  a  lawj^er  he  was  alwa^-s  ready  to  lend  his 
aid  in  their  defence,  and  as  a  member  of  the  Consti- 
tutional Convention  in  1838,  he  opposed  all  dis- 
criminations against  any  man  on  account  of  his 
color  and  refused  to  sign  the  proposed  constitution 
because  it  limited  the  right  of  suffrage  to  "  white 
citizens."  ^  At  about  the  same  time  Stevens  attended 
a  convention  at  Harrisburg  which  proposed  to  save 
the  Union  by  repressing  the  anti-slavery  agitation. 
His  views  were  radically  opposed  to  such  an  attitude, 
and  by  his  ridicule  and  his  arguments  he  drove  the 
convention  into  an  adjournment  without  action. 

In  1849  Stevens  was  elected  a  member  of  the  na- 
tional House  of  Representatives,  at  an  age  when  most 
men  are  beginning  to  contemplate  the  end  of  their 
active  careers.  His  real  career,  however,  was  not  yet 
beginning,  for  after  serving  two  terms  he  retired  from 
Congress,  as  it  then  seemed  for  good,  and  did  not 
return  till  six  years  later.  When  first  elected  to 
Congress,  Stevens  had  at  once  assumed  the  leader- 
ship of  the  small  band  of  Free-Soilers  and  extreme 
Whigs,  and  in   the  slavery  contests  during  his  two 

1  S.  W.  McCall,  Thaddeus  Stevens,  p.  37. 
^Ibid.,  p.  48. 


234  Story  of  the  Constitution 

terms,  he  was  unwavering  in  bis  hostility  to  the  in- 
stitution. The  close  of  tlie  Mexican  War  and  the 
acquisition  of  new  territory  brought  the  question  of 
the  extension  of  slavery  to  the  front  as  it  had  not 
been  since  1820.  California  quickly  filled  up  with 
a  non-slaveholding  population  and  immediately 
adopted  a  constitution  forbidding  slavery  and  asked 
for  admission  as  a  free  State.  If  California  should 
be  admitted  as  a  free  State,  the  hope  of  the  slave 
States  to  profit  by  the  war  would  be  greatly  les- 
sened. The  fairest  portion  of  the  newly  acquired 
territory  would  be  lost  to  them.  It  is  small  wonder, 
then,  that  the  admission  of  California  was  so  vigor- 
ously opposed. 

An  ever  present  cause  of  irritation  between  the 
sections  of  the  country  was  the  Fugitive  Slave  Law 
by  which  "  persons  held  to  service  or  labor "  were 
to  be  returned  to  those  to  whom  they  owed  the  serv- 
ice or  labor.  In  tlie  Nortli  it  was  detested  and  its 
enforcement  was  liindered  in  every  lawful  and  in 
some  unlawful  ways.  Any  other  course  seemed  to 
imply  complicity  in  the  horrors  of  slavery,  a  newly 
awakened  moral  sensitiveness  rebelled  at  the  consti- 
tutional safeguards  of  the  evil,  and  personal  liberty 
laws  abounded.  In  the  South,  on  the  other  hand,  the 
idea  that  slavery  Avas  a  "  positive  good "  had  be- 
come very  generally  accepted  and  this  positive  good 
was  guaranteed  to  them  by  the  solemn  compact  of 
the  Constitution  itself.  Every  failure  to  return  a 
fugitive  slave  was  not  only  tlie  occasion  of  direct 
financial  loss  to  tlie  owner,  but  also  was  a  violation 
of  the  most  sacred  obligation.  The  attitude  of  the 
North   toward  slavery   bore   infinitely   more   hardly 


Thaddeus  Stevens  235 

upon  the  South  tliau  did  tlie  actual  loss  of  the  slaves. 
It  was  a  constant  accusation  against  their  whole 
ethical  and  moral  system.  It  was  like  a  goad  in 
the  flanks  that  finally  drove  them  into  an  unmanage- 
able revolt. 

When  Congress  met  in  December,  1860,  the  revolt 
was  already  in  progress;  Secession  conventions  had 
been  summoned  in  more  than  one  Southern  State  and 
the  Senators  from  South  Carolina  had  resigned  their 
seats.  President  Buchanan,  in  his  message  to  Con- 
gress on  the  day  of  its  assembling,  combined  a  rebuke 
for  "  the  long  continued  and  intemperate  interference 
of  the  Northern  people  with  the  question  of  slavery,"  ^ 
and  for  the  agitation  which  had  produced  its  "  malign 
influence  upon  the  slaves,  and  inspired  them  with 
vague  notions  of  freedom,"  with  a  justification  of  the 
action  of  the  South  that  came  as  from  the  lips  of 
one  of  them.  Furthermore  he  asserted  his  belief  that 
Congress  was  powerless  to  prevent  the  dissolution  of 
the  Union,  that  "  the  sword  was  not  placed  in  their 
hands  to  preserve  it  by  force."  In  Congress  itself 
the  old  spirit  of  compromise  still  ruled.  Both  Sen- 
ate and  House  appointed  committees  of  reconciliation 
and  the  extent  to  which  the  North  was  willing  to  go 
to  preserve  the  Union  seems  incredible  in  view  of 
the  victory  of  the  Republican  party  at  the  polls.- 
Repeal  of  personal  liberty  laws,  revision  of  the  Fugi- 
tive Slave  Law  to  the  point  of  endangering  the 
liberty  of  free  white  men,  and  an  amendment  to  the 
Constitution  forever  removing  the  possibility  of  an 
amendment  which  would  interfere  with  slavery  in  the 

1  Messages  and  Papers  of  the  Presidents,  v.,  635  ff. 

2  Burgess,  op.  cit.,  i.,  96;  and  McCall,  op.  cit.,  p.  121  ff. 


236  Story  of  the  Constitution 

States  unless  such  amendment  should  originate 
in  a  slave  State  and  be  ratified  by  every  State 
in  the  Union,  were  the  concessions  proposed 
but  without  avail.  Only  on  the  question  of 
the  extension  of  slavery  did  the  Republicans  stand 
firm. 

The  adoption  of  such  measures  as  these  would  have 
riveted  the  chains  of  slavery  till  the  millennium  if  the 
Constitution  could  control.  The  folly  was  that  men 
did  not  see  that  the  time  for  compromise  was  past; 
that  former  compromises  had  postponed  only  to  in- 
crease the  evils  they  sought  to  cure;  that  the  life  of 
the  nation  could  not  be  regulated  by  the  law,  no 
matter  how  solemnly  compacted,  if  the  life  of  the 
nation  be  at  stake.  Secession  was  already  full  grown. 
The  Confederacy  was  an  established  fact.  A  Con- 
stitution had  been  proposed,  Jefferson  Davis  elected 
President,  and  a  Congress  assembled  before  the  com- 
promise measures  passed  the  House,  and  the  sepa- 
ration had  been  declared  to  be  "  perfect,  complete, 
and  perpetual." 

Thaddeus  Stevens  desired  no  compro'mise;  the  time 
had  come  to  determine  whether  or  not  Secession  was 
a  lawful  act.  If  so,  he  said,  "  then  the  Union  is 
not  worth  preserving  for  a  single  day."  But  he 
utterly  repudiated  tlie  right  of  a  State  to  withdraw 
and  exulted  in  the  election  of  Lincoln,  though  he 
should  "  see  this  government  crumble  into  a  thou- 
sand atoms."  His  opposition  to  compromise  had  no 
effect  and  the  man  who  should  lead  Congress  through 
the  crisis  "  sat  by,  protesting  and  threatening,  waiting 
for  his  time  to  come."  ^ 

iMcCall,  p.  124, 


Thaddeus  Stevens  237 

Tliat  time  was  not  lorij^  delayed.  Lincoln  liad 
sunniioued  ('()n<»Tess  to  meet  on  July  4th.  War  had 
begun  with  the  firing  on  Fort  Sumter,  and  when  Con- 
gress met  there  was  urgent  need  of  both  men  and 
money.  Stevens,  as  chairman  of  the  Ways  and 
jMeans  Committee,  was  supreme  in  all  financial  legis- 
lation. From  til  is  point  of  vantage,  he  was  soon 
recognized  as  the  leader  in  Congress  and  more  and 
more  it  followed  his  guidance.  With  the  death  of 
Lincoln,  Stevens's  influence,  which  had  been  decisive 
in  legislation,  became  dominant.  During  Recon- 
struction, Stevens  so  long  as  he  lived,  was  dictator 
in  the  House  and  leader  of  his  party. 

By  disposition  and  by  training  Stevens  was  a 
radical.  There  was  no  element  of  compromise  in 
him  and  from  the  first  he  held  a  consistent  theory 
regarding  the  position  of  the  Southern  States  and 
the  treatment  that  should  be  accorded  them.^  That 
theory  is  in  the  main  well  known.  The  seceding 
States  were  in  rebellion  and  their  supporters  should 
be  dealt  with  as  rebels.  The  right  of  revolution  was 
comprehensible  to  his  mind,  but  the  right  of  Secession 
was  abhorrent.  The  Union  must  be  preserved  at  any 
cost,  nor  need  too  great  thought  be  bestowed  upon  the 
strict  legality  of  the  means  employed.  The  powers 
of  the  Federal  Government,  he  argued,  were  limited 
only  by  the  necessities  of  the  occasion  when  the  main- 
tenance of  its  own  existence  was  at  stake.  So  eager 
was  he  to  render  support  to  the  President,  that,  within 
a  week  after  Congress  assembled,  the  money  asked 
for  by  the  Administration  had  been  granted,  and 
within  a  few  days  more  the  necessary  bills  for  rais- 

1  McCall,  p.  191. 


238  Story  of  the  Constitution 

ing  the  enormous  sums  demanded  had  been  introduced 
and  passed. 

The  "  Crittenden  Resolution  "  which  declared  that 
"  the  war  is  not  waged  in  any  spirit  of  oppression, 
or  for  any  purpose  of  conquest  or  subjugation,"  or 
to  interfere  with  "  the  rights  or  established  institu- 
tions "  of  the  seceded  States,  but  to  "  preserve  the 
dignity,  equality,  and  rights  of  the  several  States 
unimpaired,"  passed  both  Senate  and  House  with 
scarcely  a  dissenting  Eepublican  vote  save  that  of 
Stevens.^  The  nation,  he  thought,  should  not  hamper 
itself  in  any  particular  with  reference  to  the  conduct 
of  the  war  or  the  results  which  might  flow  from  it. 
By  the  opening  of  the  next  session  the  principle  of  the 
resolution  had  been  so  far  violated,  that  the  House 
adopted  a  motion  of  Stevens  to  lay  it  on  the  table 
when  it  was  proposed  to  reaffirm  it. 

In  this  same  session  a  bill  was  introduced  to  con- 
fiscate the  property  "  used  for  insurrectionary  pur- 
poses "  and  to  free  the  slaves  who  were  employed  in 
any  military  or  naval  service  against  the  Govern- 
ment. r>oth  proposals  were  mucli  to  Stevens's  liking. 
The  object  of  the  war  was  "  to  subdue  the  rebels,"  and 
confiscation  of  "  rebel  "  property  found  favor  with 
him  both  as  a  measure  of  war  and  as  a  means  of 
punishment.  Stevens  has  been  called  vindictive,  but 
]iis  vindictiveness  was  not  blood-thirsty;  he  would 
punish  by  taking  away  property,  but  not  life.  He 
would  weaken  the  enemy  Iw  depriving  him  of  the 
means  of  support.  The  laws  of  war  should  govern 
in  a  rebellion.  The  rights  of  the  seceded  States  un- 
der the  Constitution  had  been  lost  by  their  Secession 

'  McCall,  p.  148. 


Thaddeus  Stevens  239 

and  the  const itutioual  guarantees  of  slavery  de- 
stroyed. Tliis  was  more  advanced  ground  tlian  llie 
House  was  yet  willing  to  take  and  the  bill  was  re- 
jected; it  was  not  long,  however,  till  Congress  as- 
sumed the  position  now  advocated  by  Stevens.^ 

Stevens  was  one  of  the  few  members  of  Congress 
who  did  not  scM'k  to  justify  every  step  by  some  con- 
struction of  the  Constitution,  however  strained  or 
fanciful.  He  early  recognized  the  fact  that  no  pro- 
vision for  a  civil  war  had  been  incorporated  in  the 
Constitution,  and  that  in  the  war  in  progress  the 
United  States  was  compelled  to  fight  for  existence. 
In  that  struggle  paper  barriers  must  be  swept  away. 
Secession  had  destroyed  the  Constitution  in  the  se- 
ceding States  and  the  great  task  of  the  Union  w^as 
to  restore  its  sway  over  them.  He  would  not  be 
scrupulous  about  the  constitutionality  of  the  means 
when  the  end  was  the  establishment  of  the  Consti- 
tution. He  recognized,  as  did  few  others,  that  the 
time  for  fine-spun  theories  had  passed,  and  that  the 
need  for  success  was  greater  than  that  for  legality 
of  procedure. 

For  two  generations  the  American  people  had  been 
blind  worshippers  of  the  Constitution.  They  had 
thought  to  find  in  it  a  solution  for  all  the  political 
problems  that  confronted  them,  if  only  their  w^orship 
were  blind  enough,  with  the  result  that  metaphysics 
had  taken  the  place  of  common  sense,  and  the  best 
intellects  of  the  country  had  been  devoted  to  the 
barren  attempt  to  determine  by  subtle  processes  of 
constitutional  construction  the  course  of  mighty 
moral  and  political  forces.     Stevens  perceived  this 

1  McCall,  pp.  149-50. 


240  Story  of  the  Constitution 

clearly  and  with  his  characteristic  directness,  broke 
away  from  the  mental  bondage  of  the  times  and  pro- 
claimed a  doctrine  of  force.  The  Constitution  had 
been  exalted  above  the  Union.  He  sought  to  restore 
it  to  its  proper  place,  and  in  the  attempt  he  would 
be  guided  by  the  needs  of  the  situation  rather  than 
be  hampered  by  constitutional  doctrines. 

Illustrations  of  Stevens's  attitude  toward  the  Con- 
stitution are  abundant  throughout  the  war.  At  its 
very  inception  he  advocated  the  issue  of  legal  tender 
notes  as  being  within  the  province  of  the  Federal 
Government.^  Such  a  power  had  not  been  expressly 
enumerated  in  the  Constitution,  but  every  power 
necessary  to  carry  out  the  granted  powers  had  been 
conferred  upon  it.  In  the  Constitutional  Conven- 
tion, with  respect  to  this  power  it  had  been  left  "  to 
the  exigencies  of  the  times  to  determine  its  necessity," 
and  Congress  had  the  power  to  judge  whether  or 
not  this  necessity  had  arisen. 

An  even  clearer  illustration  may  be  seen  in  his 
attitude  toward  the  admission  of  the  new  State  of 
West  Virginia.-  This  mountainous  district  of  "  The 
Old  Dominion  "  did  not  share  with  the  rest  of  the 
State  its  feeling  toward  Secession.  It  proceeded, 
therefore,  to  organize  a  State  government  and  to  elect 
representatives  to  Congress.  That  so  small  a  portion 
of  the  people  of  Virginia  should  claim  to  represent 
the  whole  State  was  absurd,  so  it  was  determined  to 
apply  for  admission  as  a  new  State.  Here,  however, 
an  apparently  insuperable  obstacle  was  encountered, 
for   the   Constitution   provides   that  no  new   States 

1  McCall,  p.  152  ff. 
-  Ibid.,  p.  190  ff. 


Thaddeus  Stevens  241 

sliall  be  formed  from  the  territory  of  an  old  one, 
without  the  latter's  consent.  Many  were  not  unwill- 
inji'  to  ar^ue  that  tlie  Le«;ishiture  of  the  new  State 
was  the  Legislature  of  Virginia,  and  so  could  give 
the  necessary  consent  to  its  own  disuiciiibernient. 
Such  a  viewpoint  Stevens  rejected  as  ridiculous  on 
tlie  face  of  it.  He  wislied  it  plainly  understood  that 
he  was  not  "  being  deluded  by  the  idea  that  we  are 
admitting  this  State  in  pursuance  of  any  provision 
of  the  Constitution."  It  was  preposterous  to  main- 
tain that  two  hundred  thousand  people,  segregated 
in  a  single  district,  could  represent  more  than  a 
million  in  the  rest  of  the  State,  who  were  them- 
selves organized  in  their  own  form  of  government. 
Tlie  State  of  Virginia,  therefore,  had  never  given  its 
consent  to  the  separation.  This  was  no  objection  to 
Stevens's  mind  to  admitting  the  new  State,  for  in 
accordance  with  his  general  view,  the  Constitution 
had  ceased  to  be  applicable  to  the  seceded  States, 
and  therefore  the  observation  of  its  provisions  with 
respect  to  them  was  unnecessary. 

This  was  his  view  of  the  constitutional  status  of 
the  seceded  States  from  the  beginning  of  the  war 
to  his  death. ^  It  was  the  view  consistently  advo- 
cated by  him  in  the  days  of  Reconstruction  and  the 
view  finally  adopted  by  the  nation  in  its  legislation.- 
The  Confederate  States,  he  asserted,  had  established 
a  power  which  the  United  States  had  recognized 
by  the  proclamation  of  a  blockade  of  the  Southern 

1  Johnston,  American  Political  History,  ii.,  440.  "  From  the 
outbreak  of  the  Rebellion  until  the  end  of  reconstruction  but  two 
parties  consistently  maintained  a  consistent  theory,  the  Demo- 
cratic party  and  Thaddeus  Stevens." 

2  McCall,  op.  cit,  p.  261  and  p.  274. 

i6 


242  Story  of  the  Constitution 

ports;  the  Constitution,  therefore,  had  not  the  slight- 
est application  to  them,  nor  its  obligations  the  slight- 
est effect  upon  them ;  likewise  its  protection  no  longer 
extended  to  them.  In  short  the  relations  of  the  two 
parties  to  this  civil  war  could  not  be  regulated  by 
the  law  of  the  land  but  by  the  law  of  nations;  the 
parties,  he  declared,  "  stand  in  precisely  the  same 
predicament  as  two  nations  who  engage  in  a  contest," 
and  this  principle  he  applied  to  Reconstruction  with 
the  result  that  he  was  brought  into  immediate  con- 
flict with  the  theories  of  Lincoln  and  Johnson. 

In  his  first  inaugural  Lincoln  had  declared  that 
"  in  contemplation  of  universal  law  and  of  the  Con- 
stitution, the  L^nion  of  these  States  is  perpetual"^; 
and  in  the  last  speecli  he  ever  made,  one  on  Recon- 
struction on  April  11,  18G5,  wliile  avoiding  the 
theoretical  question  as  to  whether  the  seceded  States 
had  ever  been  out  of  the  Union,  he  took  the  position 
that  they  were  out  of  their  proper  practical  relation 
with  the  Union,  and  that  "  the  sole  object  of  the 
government,  civil  and  military,  in  regard  to  those 
States  is  to  again  get  them  into  that  proper  practical 
relation."  - 

With  such  a  view  Stevens  was  utterly  out  of  sym- 
pathy and  his  hostility  to  the  theory  of  Lincoln,  as 
Johnson  attempted  to  carry  it  out,  was  bitter  and 
determined.  Lincoln's  plan  of  Reconstruction  was 
simple  in  the  extreme  and  rested  upon  the  position 
that  the  States  as  such  could  not  secede;  that  what 
had  taken  place  was  that  certain  citizens  of  the  se- 
ceded States  were  in  insurrection  against  the  United 

1  Works,  vi.,  169. 

2  Ibid. 


Thaddcus  Stevens  243 

States,  and  in  carrying  out  their  plans  had  gotten 
possession  of  the  State  governments.  x\ll  that  was 
necessary  to  reconstruct  them  was  to  restore  the  gov- 
ernments to  the  hands  of  loyal  citizens.  Lincoln 
perceived  that  such  a  Reconstruction  would  be 
limited  to  the  establishment  and  recognition  of  such 
governments  by  the  Executive.  Congress  must  still 
determine  whether  or  not  the  representatives  from 
these  reconstructed  States  should  be  admitted  to  its 
halls. 

The  question  of  Reconstruction  had  not  become 
acute  when  Lincoln  was  assassinated.  The  w^hole 
strength  of  the  nation  had  been  directed  towards  the 
successful  completion  of  the  military  struggle.  With 
Lee's  surrender  at  Appomattox,  the  Confederacy  w^as 
practically  at  an  end,  and  President  Johnson  was  at 
once  confronted  with  the  settlement  of  this  vexed 
question :  a  settlement  that  had  of  necessity  been 
postponed  till  the  close  of  the  war.  Serious  con- 
sideration of  the  question,  however,  had  been  in 
progress  during  the  course  of  the  contest.  In  fact 
Congress  and  the  President  had  come  to  a  deadlock 
on  the  subject  in  1863. 

Stevens  had  early  arrived  at  the  conclusion  which 
Congress  now  proceeded  to  enforce  in  opposition  to 
the  plan  of  the  President.  If  the  rights  of  the  se- 
ceding States  had  been  destroyed,  they  were,  at  the 
conclusion  of  the  war,  "  conquered  provinces,"  and 
it  would  rest  with  the  conqueror  to  determine  upon 
what  conditions  they  might  be  restored  to  the  enjoy- 
ment of  those  rights. 

Under  the  plan  of  Reconstruction  whicli  President 
Johnson  promulgated  within  six  weeks  after  his  in- 


244  Story  of  the  Constitution 

auguration,  which  was  substantially  Lincoln's  plan, 
the  Southern  States  rapidly  amended  their  consti- 
tutions so  as  to  bring  them  into  harmony  with  the 
new  conditions,  and  in  a  short  time  their  Legislatures 
were  in  session  and  their  representatives  to  Congress 
chosen. 

Had  the  Southern  States  been  content  to  let  the 
negro  alone,  all  might  have  gone  well,  but  they  at 
once  began  to  pass  laws  discriminating  against  the 
freedmen.^  These  laws  were  of  such  a  character  as 
to  arouse  the  fear  in  the  North  that  the  negroes  were 
being  virtually  reinslaved  and  that  the  fruits  of  vic- 
tory were  in  grave  danger  of  being  lost.  Emanci- 
pation was  about  to  be  robbed  of  its  efficacy  through 
the  action  of  the  newly  erected  State  governments, 
and  a  profound  distrust  of  the  President  and  his 
policy  was  excited  in  the  North  because  of  his  leni- 
ency toward  the  South.  In  proportion  as  he  was 
conservative,  Congress  became  radical.  The  opinion 
rapidly  gained  ground  that  the  freedmen  must  be 
armed  with  the  ballot  to  protect  themselves  and  to 
continue  the  Republican  party  in  power.^  Equally 
rapidly  the  Johnson  plan  of  Reconstruction  was  dis- 
credited with  Congress.  The  way  was  opened  for 
radical  action  which  was  destined  to  bring  the  Presi- 
dent to  the  bar  of  the  Senate  and  to  subject  the 
South  to  years  of  humiliation  and  suffering. 

The  spirit  of  the  radical  reaction  was  Thaddeus 
Stevens;  aged  and  infirm,  with  body  bent  under  the 
years  of  struggle  so  that  at  times  he  had  to  be  car- 
ried into  the  House,  he  still  retained  a  strength  of 

^  Burgess,  Civil  War  and  Reconstruction,  p.   44. 
-  Johnston,  op.  cit.,  ii.,  447. 


Thaddeus  Stevens  245 

will,  clearness  of  purpose,  and  keenness  of  wit  that 
made  him  dictator  of  the  House  and  master  of  the 
radical  sentiment  of  the  country. 

Immediately  upon  the  assembling  of  Congress  in 
December,  1805,  Stevens  proposed  the  appointment 
of  a  committee  composed  of  nine  Representatives 
and  six  Senators  to  investigate  the  conditions  in  the 
South  and  "  report  whether  they  or  any  of  them  are 
entitled  to  be  represented  in  either  House  of  Con- 
gress." Stevens  was  made  House  Chairman  of  the 
Committee  on  Reconstruction  and  from  this  time  to 
his  death,  in  1868,  he  devoted  his  chief  efforts  to  bring 
about  Reconstruction  in  accordance  with  his  own 
views.^ 

Whether  the  States  were  within  or  without  the 
Union,  he  was  firmly  convinced  that  Reconstruction 
could  not  take  place  by  Executive  action  alone,  but 
that  it  must  be  a  concurrent  act  of  the  President  and 
of  Congress.  The  Reconstruction  that  had  already 
taken  place  by  Executive  action  was,  therefore,  in- 
valid, unless  it  should  receive  the  sanction  of  Con- 
gress. If  any  hope  ever  existed  that  Congress  would 
concur  in  the  Lincoln- Johnson  plan,  it  vanished  in 
the  face  of  Johnson's  utter  disregard  of  Congress,  his 
denunciation  of  the  Reconstruction  Committee,  and 
liis  egotistical  belief  in  himself  as  the  leader  of  the 
people  and  defender  of  the  Constitution.  With  an  over- 
whelming majority  at  his  back,  Stevens  was  able  to 
carry  his  measures  over  the  President's  veto,  and  in 
a  short  time  the  Freedman's  Bureau  Bill  and  the 
Civil  Rights  Bill  had  become  law  in  this  manner. 

In   the   same   session   of   Congress   Stevens   intro- 

1  McCall,  op.  cit.,  258;  and  Burgess,  op.  cit.,  57  ff. 


246  Story  of  the  Constitution 

duced  into  tlie  House  the  Fourteenth  Amendment  for 
submission  to  the  States  for  adoption.  The  Thir- 
teenth Amendment,  abolishing  slavery,  had  already 
been  adopted  and  had  found  no  stronger  advocate 
than  Thaddeus  Stevens.  But  the  Thirteenth  Amend- 
ment seemed  insufficient  to  furnish  protection  to 
freedmen  in  their  civil  rights,  and  hence  the  ne^d 
of  the  Fourteenth  Amendment,  establishing  their 
citizenship  and  guaranteeing  them  against  the  abridg- 
ment of  their  "  privileges  or  immunities  as  citizens 
of  the  United  States '' ;  against  the  deprivation  "  of 
life,  liberty,  or  property,  without  due  process  of  law," 
and  affording  to  all  "  the  equal  protection  of  the 
laws."  Representation  was  to  be  apportioned  ac- 
cording to  the  population,  but  should  be  reduced  in 
proportion  as  the  right  to  vote  was  denied  to  any 
male  citizen  twenty-one  years  of  age,  except  as  a 
punishment  for  crime.  A  disability,  that  could  be 
removed  by  a  two-thirds  vote  of  Congress,  was  placed 
upon  all  who  had  held  office  before  the  war,  had 
taken  an  oath  to  support  the  Constitution  of  the 
United  States,  and  had  subsequently  engaged  in  the 
rebellion  against  the  Union. ^  The  validity  of  the  na- 
tional debt  was  established,  and  payment  of  all 
debts  incurred  "  in  aid  of  insurrection  or  rebellion 
against  the  United  States,  or  any  claim  for  the  loss 
or  emancipation  of  any  slave  "  was  forever  forbidden. 
At  the  same  time  a  bill  was  introduced  by  Stevens 
providing  that  when  the  Fourteenth  Amendment  had 
become  a  part  of  the  Constitution  and  had  been  rati- 
fied by  "  any  State  lately  in  rebellion,"  and  such  State 
should    have    adopted    a    constitution    and    laws    in 

1  Cf.  Burgess,  op.  cit.,  p.  78. 


Thaddeus  Stevens  247 

accordance  tlierewilii,  it  sliould  be  admitted  to  repre- 
sentatiou  in  Congress.  The  bill,  however,  was  not 
acted  upon  and  before  the  opening  of  the  next  ses- 
sion, Johnson  had  disgraced  himself  "  swinging 
around  the  circle,"  ^  the  congressional  elections  had 
gone  overwhelmingly  against  him,  and  his  cause  was 
lost.  The  radical  sentiment  was  on  the  increase  and 
when  Congress  met  in  December,  Stevens  had  nothing 
to  fear  from  the  President's  veto.  He  was  in  com- 
plete control  of  the  situation  and  immediately  began 
to  carry  out  in  legislation  the  theory  respecting  the 
seceded  States  that  he  had  advocated  since  Lincoln 
reconstructed  Louisiana  on  the  ten  per  cent.  plan. 
The  "  con(]uered  province"  theory  was  triumphantly 
carried  out,  and  Reconstruction  was  made  the  result 
of  Congressional  and  not  Presidential  action. 

The  two  ideas,  that  Reconstruction  was  the  busi- 
ness of  Congress,  and  that  the  seceded  States  had 
lost  their  rights  under  the  Constitution,  had  been 
cherished  by  Stevens  from  the  beginning  and  in  the 
report  of  the  combined  House  and  Senate  committee 
referred  to  above,  his  views  had  found  expression. 
The  argument  that  the  seceded  States  had  never  been 
out  of  the  Union  was  refuted  in  the  following  lan- 
guage: "If  rebellion  succeeds,  it  accomplishes  its 
purpose  and  destroys  the  Government.  If  it  fails, 
the  war  has  been  barren  of  results,  and  the  battle 
may  be  still  fought  out  in  the  legislative  halls  of 
the  country.  Treason,  defeated  in  the  field,  has  only 
to  take  possession  of  Congress  and  the  cabinet."  ^ 
To  the  radical  Thaddeus  Stevens,  such  a  possibility 

1  McCall,  op.  cit.,  p.  280. 

2  Quoted,  McCall,  op.  cit.,  274. 


248  Story  of  the  Constitution 

was  abhorrent,  almost  impious.  In  bis  eyes  the  se- 
ceded States  were  rebels  and  should  be  made  to  pa}' 
the  penalty  of  rebellion.  They  should  be  made  to 
feel  that  the  greatest  civil  war  on  record  was  not 
"  barren  of  results.''  The  victors  could  and  should 
prescribe  such  conditions  to  the  vanquished  as  would 
secure  forever  the  grand  result  of  freedom  to  the 
blacks. 

The  Southern  legislatures,  with  the  exception  of 
that  of  Tennessee,  had  contemptuously  rejected  the 
Fourteenth  Amendment  and  with  it  the  mild  con- 
ditions that  had  been  proposed.  Deluded  by  the 
hope  that  President  Johnson  would  win  in  his  contest 
with  Congress  and  unwilling  to  brand  with  infamy 
the  leading  men  in  the  South,  or  to  proclaim  with 
their  own  mouths  that  they  had  been  in  error,  the 
States  had  rejected  Reconstruction  on  the  terms  of 
the  Fourteenth  Amendment.^  Whether  or  not  a  dif- 
ferent course  would  have  been  pursued  had  they  re- 
alized what  the  radical  element,  once  in  power,  had 
in  store  for  them,  is  matter  of  speculation  merely. 

During  the  campaign  the  feeling  in  favor  of  negro 
suffrage  grew  apace.  Before  the  close  of  the  pre- 
ceding session,  Stevens  had  made  a  powerful  speech 
in  its  advocacy.  The  force  of  his  appeal  was  in- 
creased by  the  fact  that  it  seemed  not  unlikely  that 
it  would  be  his  last  effort,  as  his  health  was  very 
poor.  When  Congress  assembled  in  tlie  autumn  of 
1866,  there  was  little  delay  in  putting  into  effect 
the  verdict  of  tlie  country  that  had  been  rendered  in 
the  recent  elections.  Congressional  Reconstruction 
was    at    once    substituted    for    Executive.     Military 

•    1  Burgess,  op.  cit.,  p.  106. 


Thaddeus  Stevens  249 

governments  were  establi.slied  over  the  Southern 
States,  and  as  a  condition  of  their  re-entry  into  the 
Union,  universal  suffrage  for  the  blacks  as  well  as 
for  the  whites  was  added  to  the  conditions  of  the 
preceding  session.  Negro  suffrage  had  to  be  in- 
corporated in  the  State  constitutions  and  the  Four- 
teenth Amendment  in  the  national  Constitution 
before  the  States  should  "  be  declared  entitled  to 
representation  in  Congress,"  ^ 

Upon  the  basis  of  Stevens's  ideas.  Reconstruction 
was  eventually  carried  out.  The  South  entered  upon 
a  period  of  political  anarchy  and  debauchery  which 
it  seems  incredible  that  thinking  men  should  not  have 
foreseen  and  have  shrunk  from  aghast.  Could 
Stevens  have  lived  to  witness  the  entry  of  the  last 
seceded  State  into  the  Union,  even  his  vindictive 
spirit  must  have  felt  that  the  "  traitors  "  had  paid 
their  due. 

The  logical  outgrowth  of  this  legislation  was  the 
Fifteenth  Amendment  which  Stevens,  however,  did 
not  live  to  see.  It  secured,  so  far  as  the  forms  of 
law  could  effect  it,  that  the  right  to  vote  should  not 
be  denied  "  on  account  of  race,  color,  or  previous 
condition  of  servitude." 

The  last  important  act  of  Stevens's  life  was  the 
attempted  impeachment  of  President  Johnson. ^  For 
the  first  and  only  time  in  our  history,  the  Presi- 
dent of  the  United  States  was  presented  at  the 
bar  of  the  Senate  by  the  House  of  Representatives. 
The  interest  of  the  trial  for  us  is  in  its  effects  upon 
our  constitutional  theory.     It  determined  finally  the 

1  McCall,  op.  ciL,  p.  275  ff. 

2  Ibid.,  p,  323,  and  Burgess,  op.  cit.,  p.  157. 


250  Story  of  the  Constitution 

futility  of  attempting  to  use  impeachment  as  a  "  po- 
litical proceeding."  If  it  were  possible  for  the  Sen- 
ate and  the  House,  when  two-thirds  of  their  members 
differed  from  the  President,  to  remove  him  from 
office  by  the  political  practice  of  impeachment,  the 
stability  of  the  Executive  would  be  lost  and  the 
balance  of  the  powers  of  government  be  destroyed. 

On  August  11,  1868,  Stevens  died,  but  the  radical 
spirit  which  he  typified  lived  after  him.  It  stands 
to-day  imprinted  on  our  statute  books  in  the  legis- 
lation of  the  War  and  Reconstruction,  and  has  found 
enduring  form  in  the  amendments  to  the  Constitu- 
tion. But  the  will-o'-the-wisp  of  universal  suffrage 
no  longer  lures  us  toward  the  destruction  of  our 
institutions.  We  have  realized  that  it  is  impossible 
to  lift  from  "  barbaric  ignorance  "  by  the  ballot,  or 
to  endow  with  political  wisdom  by  the  gift  of  the 
suffrage.  Suffrage  is  a  privilege,  not  a  right,  and 
like  liberty,  can  be  enjoyed  only  by  those  who  have 
passed  through  the  struggle  to  win  it  by  their  merit. 
We  view  with  complacency  the  practical  nullification 
of  negro  suffrage  as  secured  by  the  Constitution. 
Rather  than  try  to  work  the  cumbersome  machinery 
of  amendment  to  undo  what  required  such  a  wrench 
of  the  national  life  to  achieve,  we  tolerate  the 
violation  of  the  letter  of  the  law  of  which  the  spirit 
is  dead. 


XII 

Theodore  Roosevelt.    Growth  through 

Expansion 


251 


THEODORE  ROOSEVELT 

1858.     Oct.  27.     Born  in  New  York  City. 
1880.  Graduated  from  Harvard. 

Student  at  New  York  Law  School. 
1882-84.  Republican  member  of  New  York  Assembly. 

1884.  Candidate  for  Speaker  of  Assembly. 

Delegate  to  Republican   State  Convention. 

Delegate-at-large  to  Republican  National  Con- 
vention at  Chicago. 
1884-86.  Lived  on  ranch  in  North  Dakota. 

1886.  Candidate  for  Mayor  of  New  York  City. 

1889.  Appointed  on  U.  S.  Civil  Service  Commission. 

1895.  Resigned. 

1895-97.  President    of    Board   of    Police    Commissioners 

of  New  York  City. 

1897.  April.         Appointed  Assistant  Secretary  of  U.  S.  Navy. 

1898.  May.  Commissioned    Lieutenant-Colonel    of    the    1st 

U.   S.  V.  Cavalry. 
Promoted  to  Colonelcy. 
1899-1900.  Governor  of  New  York. 

1900.  Nov.     6.    Elected   Vice-President. 

1901.  Sept.  14.  Became  President  upon  death  of  McKinley. 
1904.  Elected  President. 


252 


XII 

Theodore  Roosevelt.     Growth  through 
Expansion 

WHEN  Reconstruction  was  over  and  the  Hayes- 
Tilden  election  bad  reached  its  partisan  con- 
clusion, the  result  was  acquiesced  in  by  all  from  a 
strong  desire  for  peace.  The  turbulence  that  had 
succeeded  upon  the  years  of  actual  warfare  was  little 
less  exhausting  than  the  strife  of  battle.  It  inter- 
fered with  national  development  of  every  character 
so  seriously  that  by  1877  men  were  willing  to  secure 
peace  at  almost  any  price.  For  two  decades  there- 
after the  nation  gave  itself  over  unrestrainedly  to 
commerce  and  the  development  of  its  natural  re- 
sources.^ Railways  sprang  up  all  over  the  country 
and  were  united  into  great  systems;  enormous  aggre- 
gates of  capital  were  gathered  into  corporations  and 
corporations  into  trusts;  business  lost  its  local  and 
assumed  a  national  character.  The  spirit  of  com- 
mercialism and  the  love  of  gain  were  the  gods  of  tlie 
hour,  to  be  worshipped  with  the  sacrifice  of  moral 
character  and  business  principles. 

1  For  the  period  1877-1897,  see  Sparks,  E.  E.,  National  De- 
velopment, 1877-1885;  and  Dewey,  D.  R.,  National  Problems, 
1885-1897. 

253 


254  Story  of  the  Constitution 

The  reaction  from  the  high  moral  tone  and  severe 
stress  of  the  slavery  agitation  and  emancipation  came 
with  the  greater  disaster  because  of  their  previous 
strength.  The  moral  stamina  of  the  nation  seemed 
impaired;  new  standards  of  ethics  and  of  conduct 
arose  in  the  world  of  affairs,  which  winked  at  the 
offences  of  corporation  officials  and  condoned  their 
violations  of  law  as  if  there  were  a  difference  be- 
tween private  and  official  conduct,  as  if  officials  were 
as  soulless  as  the  corporations  they  represented. 
The  same  tendency  showed  itself  in  the  field  of  gov- 
ernment :  with  the  lessening  of  the  tension,  corruption 
crept  in. 

With  the  return  of  peace,  moreover,  there  set  in 
a  steady  process  of  readjustment  in  the  functions  of 
government.  The  various  departments  settled  back 
into  their  normal  extent.  In  the  earlier  part  of  the 
war  Lincoln  had  expanded  the  power  of  the  Executive 
into  a  dictatorship  to  save  the  Union.  Before  its 
close  the  dictatorship  had  passed  to  Congress,  which 
far  exceeded  the  normal  limits  of  its  action  and 
assumed  the  direction  of  the  whole  course  of  the 
government.  Combined  with  the  Judiciary,  the  Ex- 
ecutive and  the  Legislative  branches  of  the  govern- 
ment had  stretched  federal  powers  beyond  the  limits 
previously  conceived,  and  State  and  divided  sover- 
eignty were  replaced  by  an  unquestioned  national 
supremacy.^ 

The  sovereignty  of  the  nation  has  remained,  but 
the  high  tide  of  Executive  and  Legislative  encroach- 
ment began  to  recede  shortly  after  the  close  of  the 

^  Cf.  Dunning,  Essays  on  Civil  War  and  Reconstruction,  the 
first  two  chapters. 


Theodore  Roosevelt  255 

war,  and  from  1878  to  1898  men  felicitated  themselves 
upon  the  ease  with  which  the  powers  of  the  national 
government  could  be  expanded  to  meet  a  crisis  and 
then  sink  back  into  their  normal  condition  as  of 
course.  In  such  a  spirit  men  preferred  to  see  the 
government  do  too  little  rather  than  too  much. 

From  the  standpoint,  then,  of  our  constitutional 
development  in  its  larger  phases,  we  may  regard  the 
years  from  1878  to  1898  as  the  seven  lean  years  that 
followed  upon  the  seven  fat  years  of  the  Civil  War. 
Something  of  the  plethora  of  previous  high  living 
was  lost  and  a  more  normal  condition  supervened. 
There  was,  nevertheless,  a  development  going  on,  but 
so  quietly  and  unobtrusively  as  to  be  almost  un- 
noticed, which  lay  chiefly  in  the  field  of  property 
rights  as  influenced  by  the  presence  of  corporations. 

This  purely  commercial  era  was  followed  by  the 
Spanish  War,  which  marked  the  latest  stage  in  our 
national  expansion  and  ushered  in  Imperialism.^ 
The  possession  of  colonial  dependencies  has  brought 
many  new  and  grave  questions  for  solution,  while 
the  economic  and  social  problems  which  the  com- 
mercial and  industrial  development  had  produced, 
have  become  more  aggravated  and  acute.  The  prob- 
lems of  Imperialism  have  been  linked  with  those  of 
our  economic  development  and  to  many,  colonial  em- 
pire has  been  synonymous  with  wider  markets.  As 
the  issues  of  Imperialism  have  become  less  absorb- 
ing, those  of  Industrialism  have  become  more  press- 
ing.    The  nation  at  large  has  been  touched  by  the 

1  See  Latane,  J.  H.,  Ajnerica  the  World  Power,  1897-1907; 
also  Giddings,  F.  W.,  Democracy  and  Empire;  Hobson,  J.  A., 
Imperialism,  A  Study;  and  Jordan,  D.  S.,  Imperial  Democracy. 


256  Story  of  the  Constitution 

j^rowing  streugth  of  the  social  consciousness,  by  the 
increasing  demands  for  an  enlarged  conception  of 
social  welfare,  and  Las  given  ear  to  tlie  socialistic 
tendencies  of  the  day. 

The  last  ten  years,  therefore,  may  properly  be  desig- 
nated as  years  of  expansion,  both  territorial  and 
commercial.  For  the  first  time  in  our  history  we 
have  attempted  to  govern  over-sea  possessions  and 
for  the  first  time  we  have  become  a  factor  of  con- 
sequence in  the  politics  of  the  world.  We  are  no 
longer  isolated,  but  stand  shoulder  to  shoulder  with 
the  great  nations  of  the  earth. ^ 

No  name  has  been  more  intimately  associated  with 
this  period  of  our  national  life  than  that  of  Mr. 
Roosevelt.  In  its  earlier  phases,  to  be  sure,  he  was 
not  the  most  commanding  figure  nor  was  he  in  a 
position  to  guide  and  direct  affairs,  though  he  par- 
ticipated in  them.  Yet  he  has  identified  himself  so 
completely  in  word  and  in  deed  with  the  war  and 
its  results,  both  while  it  was  in  progress  and  sub- 
sequently, that  he  may  justly  be  regarded  as  repre- 
sentative of  its  ideals.  Since  the  first  problems  of 
Imperialism  have  been  met  and  the  attention  of  the 
country  has  been  directed  to  the  social  and  economic 
evils  attendant  upon  our  commercial  development,  he 
has  stood  at  the  front.  For  the  past  seven  years  he 
has  held  first  place  in  the  public  eye,  and  the  "  Roose- 
velt Policies  "  have  been  the  guides  of  government 
action  ^;  his  influence  has  been  the  determining  force 

1  Cf.  Coolidge,  A.  C,  The  United  States  as  a  World  Power. 

^Cf.  The  Roosevelt  Policy:  Speeches,  Letters,  ayid  State 
Papers  Relating  to  Corporate  Wealth  and  Closely  Allied  Topics, 
2  vols.,  N.  Y.,  1908;  and  The  Roosevelt  Doctrine,  Being  the  Per- 


Theodore  Roosevelt  257 

and  in  him  is  personified  the  spirit  of  our  develop- 
ment since  1808. 

The  career  of  Mr.  Roosevelt  is  so  well  known  that 
a  detailed  exposition  of  it  is  unnecessary.^  He  was 
born  in  New  York  City  in  1858,  was  graduated  from 
Harvard  in  1880,  served  as  a  member  of  the  New 
York  State  Assembly  from  1882  to  1884,  and  in  1886 
was  an  unsuccessful  candidate  for  Mayor  of  New 
Y'"ork  City;  three  years  later  he  was  appointed  by 
President  Harrison  a  member  of  the  National  Civil 
Service  Commission  on  which  he  served  for  six  years, 
resigning  to  become  President  of  the  Board  of  Police 
Commissioners  of  New  Y^ork  City  for  two  years.  As 
Assistant  Secretary  of  the  Navy,  Roosevelt  entered 
national  politics  in  1807,  and  in  the  following  year 
was  appointed  Lieutenant-Colonel,  then  Colonel,  of 
the  "  Rough  Riders  "  in  the  Spanish  War  and  was 
elected  Governor  of  New  Y^ork.  In  1000  he  was 
elected  Vice-President  and  upon  the  death  of  Presi- 
dent McKinley,  became  President  of  the  United  States 
on  September  14,  1001.  In  1004  he  was  elected 
President. 

His  life  may  be  epitomized  in  the  phrase  "  doing 
things,"  and  the  most  prominent  characteristic  of 
the  government  he  has  guided  would  find  suitable 
expression  in  the  same  words.  This  activity  of  the 
government  has  been  present  in  the  fields  both  of 
territorial  expansion  and  industrial  combination,  but 
we  must  recognize  that  the  nearer  we  stand  in  point 
of  time  to  the  things  the  government  is  doing,  the 

sonal  Utterances  of  the  President  on  Various  Matters  of  Vital 
Interest,  N.  Y.,  1904. 

1  Cf.  Riis,  Theodore  Roosevelt,  the  Citizeyi. 


258  Story  of  the  Constitution 

more  difficult  it  is  for  us  to  pass  a  correct  judg- 
ment upon  them,  to  estimate  the  forces  producing 
them,  and  to  determine  their  results.  No  attempt 
will  be  made  to  predict  the  final  results  as  they  shall 
take  shape  in  our  constitutional  life,  or  to  estimate 
conclusively  the  relation  that  Roosevelt  will  bear  to 
the  changes,  but  it  seems  possible  to  indicate  some 
of  the  general  tendencies  and  to  show  how  they  are 
modifying  our  constitutional  life  and  habit.  It  is 
quite  another  matter  to  determine  how  lasting  will 
be  the  present  movements  or  how  deep-seated  are  the 
transformations  now  in  progress. 

The  expansion  that  came  as  a  result  of  the  Span- 
ish War  was  essentially  different  from  that  which  had 
preceded.  Beginning  with  the  purchase  of  Louisiana, 
the  westward  growth  of  the  national  territory  had 
been  steady  and  natural.  It  came  through  settle- 
ment, through  the  pushing  out  of  the  borders  of 
civilization  into  country  hitherto  unoccupied,  or  at 
best  in  the  possession  of  Indian  tribes  or  of  scat- 
tered Spanish  settlements.  The  government  of  the 
new  territory  was  exercised  over  men  of  the  same 
race,  with  the  same  ideals  and  the  same  traditions 
respecting  liberty  and  authority;  the  virgin  soil  of 
the  West  was  occupied  by  the  steady  advance  of  the 
same  civilization.  The  expansion  of  1898  imported 
new  conditions  and  new  problems.  It  was  not  mere 
extension,  but  at  a  single  bound  we  crossed  the  sea 
and  took  possession  of  territory  already  held  by  peo- 
ples with  a  civilization  essentially  different  from  our 
own ;  the  new  task  was  set  us  of  incorporating  these 
radically  different  elements  into  our  national  life, 
and  even  yet  their  final  status  is  matter  of  discus- 


Theodore  Roosevelt  259 

sion.  We  have  undertakeii  a  previously  untried 
work — that  of  teaching  an  Oriental  people  the  art 
of  self-government. 

The  framers  of  the  Constitution  could  not  possibly 
have  foreseen  such  an  expansion  and  therefore  they 
made  no  specific  provision  for  it,  but  following  out 
the  general  lines  of  previous  national  development, 
we  have  found  warrant  in  the  existence  of  a  national 
state  for  the  performance  of  this  function  of  gov- 
ernment as  an  integral  part  of  state  life.  In  ac- 
cordance with  this  view,  we  have  moulded  our 
constitutional  practices  with  reference  to  our  de- 
pendencies. They  are  in  our  national  life,  but  they 
are  not  a  part  of  it.  For  certain  purposes  they  are 
our  territory,  while  for  certain  other  they  are  not. 
Their  citizens  are  not  citizens  of  the  United  States, 
though  they  are  entitled  to  its  protection.  The  Con- 
stitution does  not  follow  the  flag,  though  the  funda- 
mental rights  of  liberty  are  not  to  be  denied  to  the 
inhabitants  of  our  dependencies.  We  may  hold  and 
govern  dependent  territories;  a  republic,  we  may 
nevertheless  rule  over  subjects.^ 

Self-government  is  rightly  regarded  as  of  the  es- 
sence of  modern  political  liberty.  No  people  is  free 
that  cannot  and  does  not  govern  itself,  it  matters 
not  how  large  a  sphere  of  action  is  left  to  individuals 
by  their  rulers.  By  many  it  has  been  deemed  fatal 
to  liberty  for  a  free  people  to  rule  over  subjects ;  the 
exercise  of  arbitrary  power  reacts  upon  the  liberty 
of  those  exercising  it  and   there  is  a  lessening  of 

1  Cf.  Latane,  America,  the  World  Power,  p.  133  ff;  and  the 
Insular  Cases,  182  U.  S.  Supreme  Court  Reports,  1  ff;  183  U.  S. 
151  ff  and  176  ff. 


26o  Story  of  the  Constitution 

the  spirit  of  true  freedom.  Men  cannot  consistently 
claim  the  right  to  rule  themselves  and  not  grant  to 
others  the  same  right.  Inconsistency  and  inequality, 
in  politics  as  elsewhere,  tend  toward  uniformity,  and 
as  in  the  science  of  finance  the  worse  metal  will 
drive  the  better  out  of  circulation,  so  in  the  world 
of  political  relations  the  baser  coinage  of  despotic 
rule  puts  to  flight  the  pure  mintage  of  individual 
liberty. 

It  cannot  be  successfully  denied  that  to  some  ex- 
tent the  truth  of  this  view  has  been  demonstrated  in 
our  own  case,  though  the  loss  of  liberty  we  have 
experienced  is  to  be  felt  rather  in  the  general  at- 
titude of  the  government  toward  the  individual  than 
in  any  concrete  loss  we  have  suffered  through  statu- 
tory enactment.^  The  centralizing  tendencies  of  the 
Federal  Government  have  been  increased  and  the 
uneven  balance  between  the  States  and  the  nation 
has  been  rendered  still  greater.  With  alarming  fre- 
quency the  government  has  undertaken  new  services 
for  the  people  and  the  more  government  does,  the 
louder  is  the  demand  for  fresh  acts  of  paternal  care. 
The  spirit  of  individual  initiative  is  weakened  and 
the  desire  for  collective  activity  grows  apace. 

Within  the  Federal  Government  itself,  the  position 
of  the  President  has  profited  most  by  Imperialism. - 
Both  in  domestic  affairs  and  in  foreign  relations  he 
has  assumed  a  far  more  commanding  position  than 
heretofore.     Though  Congress  has  the  right  to  pass 

1  Cf.  Jordan,  David  Starr,  Imperial  Democracy,  and  Hobson, 
J.  A.,  Imperialism,  A  Study. 

-  Wilson,  Woodrow,  Congressional  Government,  Preface  to  the 
15th  Ed.,  p.  xi.  ff. 


Theodore  Roosevelt  261 

all  laws  recjulatini;  the  ooveruiiicnt  of  national  tciTi- 
tory,  ill  the  earlier  stages  of  ac(iuisition  it  has  beeu 
the  President,  through  the  army,  who  has  governed 
it,  and  even  after  Congress  has  legislated  there  still 
remains  an  extensive  field  for  Executive  action  and 
discretion.  Our  position  as  a  world  power  has  like- 
wise contributed  to  the  elevation  of  the  Executive 
in  proportion  as  it  has  enlarged  and  complicated  our 
relations  with  other  powers.  In  both  the  external 
and  the  internal  policy  of  the  government,  President 
Roosevelt  was  peculiarly  fitted  by  temperament  to 
make  the  influence  of  the  Executive  felt  to  a  degree 
seldom  attained  in  our  history.  In  this  respect  he 
stands  with  Jackson  and  Lincoln;  each  of  them  ex- 
alted the  power  of  the  Executive  to  a  place  of  pre- 
dominance in  our  scheme  of  government. 

The  influence,  then,  of  our  recent  territorial  ex- 
pansion has  been  twofold:  on  the  one  hand,  it  has 
tended  to  strengthen  the  power  of  the  Executive  and 
of  the  Federal  Government,  to  accentuate  the  central- 
izing tendency  that  is  present  in  every  modern  gov- 
ernment and  in  every  stage  of  governmental  activity 
from  city  to  nation ;  on  the  other,  it  has  rounded  out 
the  constitutional  development  of  the  country  on  the 
side  of  national  sovereignty.  The  Civil  War  wrought 
sad  havoc  in  the  fine-spun  theories  of  delegated  and 
strictly  limited  powers,  of  divided  sovereignty  and  of 
the  nice  adjustment  of  the  parts  of  government  over 
against  each  other.  The  President  and  Congress  by 
turns  assumed  a  preponderance  that  destroyed  all 
equilibrium,  and  the  Federal  Government  acted  on  the 
theory  of  national  sovereignty  and  the  necessity  of 
preserving  the  Union  as  the  only  limit  of  its  powers. 


262  Story  of  the  Constitution 

These  extensions  of  power  were,  nevertheless,  re- 
garded as  usurpations  and  as  justified  only  by  the 
circumstances ;  they  were  to  be  tolerated  only  so  long 
as  the  conditions  that  produced  them  should  continue 
operative.  Thus  it  happened  that  a  process  of  re- 
adjustment set  in  after  the  return  of  normal  con- 
ditions and,  save  for  the  questions  which  the  actual 
result  of  the  war  had  settled,  there  was  little  to 
mark  the  previous  expansion  of  the  powers  and  the 
unsettling  of  relationships.  The  nature  of  the  Union 
was  at  length  fixed  but  the  determination  seemed  to 
bring  little  change.  The  States  no  longer  claimed 
to  be  sovereign,  but  the  existence  of  sovereignty  in 
the  nation  left  the  every-day  relations  of  the  States  to 
the  Union  in  much  the  same  condition  as  previously. 
Their  influence,  however,  was  lessened  and  their 
individual  positions  were  less  commanding,  and  in 
proportion  as  they  have  lost,  the  Federal  Government 
has  gained,  in  the  esteem  in  which  it  is  held  by  the 
people.  As  the  one  has  fallen  the  other  has  risen, 
till  a  lively  fear  is  entertained  by  many  that  a  real 
danger  threatens  from  this  quarter.  When  Mr. 
Root  spoke  of  wiping  out  State  lines,^  champions  of 
a  new  kind  of  State-Rights  arose  on  every  hand  to 
execrate  the  dangerous  tendency  of  centralization. 

A  large  part  of  the  increase  of  Federal  powers  has 
come  as  a  result  of  our  colonial  policy  which  has 
both  elevated  and  strengthened  the  position  of  the 
nation,  without  effecting  a  corresponding  change  in 
that  of  the  States.  The  holding  of  dependencies  by 
the  nation  has  reacted  in  a  twofold  manner  on  the 
nation  itself;  it  has  brought  a  vivid  consciousness  of 

1  In  New  York  City,  1906. 


Theodore  Roosevelt  263 

a  new  phase  of  uatioiiality  to  our  Union  and  vastly 
increased  the  activities  of  that  Union.  The  process 
of  the  development  of  our  national  feeling  has  been 
a  long  and  a  difficult  one  and  it  is  only  since  the 
acquisition  of  our  colonies  that  we  have  experienced 
its  full  extent;  since  then  we  have  acquiesced  more 
fully  in  the  view  that  the  limits  of  action  set  to  the 
sphere  of  the  Federal  Government  are  not  to  be 
measured  with  the  foot-rule  of  strict  construction 
and  delegated  powers,  but  are  to  be  meted  out 
generously  with  the  yardstick  of  true  nationality. 

President  Roosevelt  was  the  leader  in  bringing  to 
our  conscious  realization  this  sense  of  nationality; 
the  sense  that  we  have  at  last  reached  our  majority 
and  have  been  admitted  to  an  equal  place  and  an 
equal  voice  in  the  family  of  nations.  He  has  at- 
tempted to  awaken  a  corresponding  sense  of  the  na- 
tional duties  and  responsibilities  that  accompany 
national  maturity.  We  must  mean  what  we  say  and 
be  prepared  to  make  it  good,  if  we  would  fill  a  man's 
place  in  the  world.  We  must  love  peace  and  pur- 
sue it,  but  at  the  same  time  be  prepared  for  war.  We 
must  be  ready  and  willing  to  assume  the  responsi- 
bilities that  result  from  our  foreign  policy  if  we 
would  make  that  policy  respected.^  Thus  it  is  that 
he  pleads  for  a  stronger  navy  and  army;  that  lie 
restores  the  peace  of  the  world  through  his  media- 
tion ;  that  he  reformulates  the  Monroe  Doctrine  and, 
regretting  the  Pacific  Blockade  of  Venezuelan  ports 
in  1903,  anticipates  similar  action  in  San  Domingo 
by  arranging  that  the  United  States  shall  collect  the 
revenue  and  herself  apply  it  to  the  liquidation  of 

1  The  Roosevelt  Policy,  passim. 


264  Story  of  the  Constitution 

the  debts;  that  he  seizes  a  questionable  opportunity 
to  secure  territorial  concessions  that  make  the  build- 
ing of  the  Panama  Canal  a  possibility;  that  he  se- 
cures the  participation  of  the  United  States  in  a 
European  conference  on  Morocco  and  the  admission 
of  the  South  and  Central  American  states  to  the 
Second  Hague  Conference. 

If  Mr.  Roosevelt  may  be  regarded  as  typical  of  the 
development  that  has  resulted  from  territorial  ex- 
pansion, and  as  embodying  the  nationalizing  forces 
of  Imperialism,  even  more  may  he  be  regarded  as  the 
soul  of  the  constitutional  changes  which  have  resulted 
from  modern  industrial  conditions.  He  has  stood  in 
the  forefront,  pointing  the  way  to  ever  increasing 
activity  on  the  part  of  the  Federal  Government.  To 
vary  the  figure,  he  has  lashed  Congress  and  the  coun- 
try with  repeated  blows  from  the  Presidential  mes- 
sage, urging  and  reurging  the  enactment  of  measures 
of  a  great  variety,  nearly  all  of  them  characterized 
by  an  expansion  of  power  or  an  extension  of  function 
on  the  part  of  the  government,  and  touching  the 
industrial  life  of  the  country.^  The  old  ideals  of 
government  in  general,  and  of  our  government  in 
particular,  are  declared  no  longer  adequate.  New 
economic  and  social  conditions  demand  new  courses 
of  action  on  the  part  of  the  government  and  from 
the  peculiar  character  of  our  government,  with  its 
division  of  power  between  the  States  and  the  nation, 
it  has  been  declared  necessary,  from  the  nature  of 
our  economic  development,  that  the  Federal  Govern- 
ment should  undertake  the  new  functions. 

The  old  ideal  of  individualism  found  expression  in 

1  The  Roosevelt  Policy,  passim. 


Theodore  Roosevelt  265 

the  economic  world  in  the  tlieory  of  free  competition ; 
it  was  regarded  as  sound  economic  doctrine  that  un- 
restricted competition  would  work  out  best  in  the 
end,  both  for  individuals  and  for  industry.  The  part 
of  the  law  was  to  provide  merely  that  competition 
should  be  unrestricted;  having  provided  a  clear  field, 
let  the  contestants  fight  it  out  and  the  individual 
with  the  greatest  amount  of  energy,  shrew^dness, 
strength,  perseverance,  and  talent  would  triumph,  to 
the  benefit  of  himself  and  of  society.  Such  a  view 
comported  well  with  the  conditions  of  a  society,  sim- 
ple in  its  structure  and  organization,  wherein  the 
contestants  were  measurably  equal;  wherein  indi- 
viduals struggled  with  individuals  and  success  was 
due  to  a  natural  superiority,  but  it  has  proved  in- 
adequate to  modern  industrial  conditions,  with  their 
great  complexity  of  relations  and  with  the  competing 
factors  on  a  plane  far  from  equal.  The  law,  instead 
of  affording  a  free  field  for  equal  competitors,  has 
itself  produced  the  gravest  inequality  through  the 
creation  of  group  persons,  corporations,  with  which 
the  individual  finds  it  increasingly  difficult  to  com- 
pete successfully.  Success  is  no  longer  due  to  the 
natural  talents  of  the  individual  but  to  the  natural 
talents,  plus  the  fortuitous  advantages  accruing  to 
groups  of  individuals  through  the  corporation. 

To  meet  the  organizations  of  capital,  labor,  too, 
has  been  organized  ^ ;  the  trust  and  the  labor  union 
are  new  and  controlling  factors  in  the  modern  indus- 
trial world;  through  them  a  large  part  of  society 
finds  itself  separated  into  opposing  camps,  each 
fighting  for  existence.     The  clash  of  these  divergent 

^  Cf.  Dewey,  op.  cit.,  p.  40  ff. 


266  Story  of  the  Constitution 

interests  has  often  been  severe  and  prolonged.  The 
strike  and  the  lockout  are  familiar  proceedings, 
while  the  boycott  and  blacklist  have  attained  a 
notoriety  for  lawlessness  and  oppression,  as  detest- 
able as  the  unwarranted  use  of  the  injunction  and 
Pinkerton  detectives. 

Meanwhile  the  interests  of  the  public  at  large  have 
been  disregarded  with  unpardonable  indifference  by 
both  sides.  In  an  age  of  such  highly  developed 
specialization  of  industries  and  consequent  greater 
dependence  of  man  upon  man  for  the  means  of  ex- 
istence, it  is  not  solely  capital  and  labor  that  have 
a  vital  interest  in  their  disputes;  the  circle  of  those 
affected  is  a  constantly  widening  one,  and  the  steady 
and  uninterrupted  pursuit  of  those  industries  touch- 
ing the  public  welfare  is  of  so  great  importance  to 
the  community,  that  it  welcomes  the  settlement  of 
an  anthracite  coal  strike  through  the  interposition 
of  the  personal  influence  of  the  President,  and  can- 
vasses the  question  of  government  ownership  of  nat- 
ural resources,  when  limited  in  extent  and  essential 
to  modern  life. 

The  individual  has  sunk  his  individuality  in  large 
measure  in  the  corporation  on  the  one  hand  and  the 
labor  union  on  the  other;  individualism  and  free  com- 
petition as  tlie  basis  of  industrialism  liave  given  way 
to  combination.  While  this  change  has  been  in  pro- 
gress, the  public  welfare  has  suffered  and  the  interests 
of  the  community  have  been  disregarded  because  our 
theories  of  government  and  economics  have  not 
squared  with  practice,  and  the  whole  foundation  of 
society,  of  law,  and  of  government  lias  been  affected. 
We  have  clung  to  individualism  in  the  field  of  gov- 


Theodore  Roosevelt  267 

ernment  and  deserted  it  in  the  field  of  business,  and 
the  inevitable  result  has  followed.  The  law  has 
proved  inadeciuate  to  the  task  set  it  and  government 
has  failed  in  some  of  its  primary  obligations  to  its 
citizens.  The  "  predatory  rich  "  no  less  than  the 
walking  delegate,  have  trampled  upon  the  rights  of 
individuals  and  of  society;  corporations  and  labor 
unions  have  menaced  the  safety  and  prosperity  of 
society,  until  the  people,  at  length  awakened  to  the 
dangers  of  the  situation,  have  attempted  to  put  a 
hook  in  the  nose  of  these  great  Leviathans. 

No  one  perceived  these  dangers  more  clearly  than 
President  Roosevelt  and  no  one  has  been  more 
strenuous  in  seeking  to  remedy  them,  in  order  that 
equality  of  opportunity  for  both  labor  and  capital 
miglit  be  secured,  and  that  every  man,  to  use  his  own 
words,  might  get  "a  square  deal."  ^  No  one  with  less 
courage  would  have  cast  himself  so  boldly  upon"  the 
people  for  support,  and  his  constant  appeals  to  them 
have  ranged  him  with  Jefferson  and  Jackson  as  a  be- 
liever in  the  ultimate  wisdom  of  the  mass  of  man- 
kind. No  one  who  was  not  botli  leader  of  his  party 
and  of  the  nation  could  have  succeeded. 

The  only  possible  solution  of  the  problem  lay  in 
the  performance  by  the  government  of  its  legitimate 
function  of  maintaining  a  free  field,  of  its  first  duty 
of  equal  justice  to  all,  though  in  doing  so  it  might 
depart  very  far  from  the  old  ideals  of  laissez-faire 
and  be  compelled  to  strengthen  its  powers  and  extend 
its  functions.  Such  a  result  was  in  entire  harmony 
with  Roosevelt's  whole  theory  of  government,  which 
combines  the  trust  of  Jefferson  in  the  people  with 

1  The  Roosevelt  Policy,  i.,  158. 


268  Story  of  the  Constitution 

Hamilton's  belief  in  the  efficacy  of  government  as  a 
means  of  progress.  He  typifies  a  triumphant  and 
confident  democracy  which  is  bent  on  making  gov- 
ernment an  instrument  of  the  general  welfare  to  an 
extent  hitherto  only  dreamed  of.  Jefferson  led  the 
forces  of  the  people  to  an  attack  upon  government 
that  they  might  conquer  and  curb  it,  lest  it  destroy 
their  liberties.  They  would  weaken  it,  that  it  might 
not  harm  them.  Jackson  captained  the  hosts  of  the 
country  to  win  possession  of  the  government  from 
which  they  had  been  unjustly  excluded;  and  once  in 
possession,  they  sought  to  crush  out  the  Bank  as  an 
agency  of  oppression.  The  danger  from  government 
was  still  present  to  their  minds,  though  it  was  be- 
cause government  was  in  the  hands  of  the  enemies 
of  the  people.  When  President  Roosevelt  assumed 
the  reins  of  government,  it  was  to  lead  the  people 
in  an  attack  upon  the  money  power  that  had  gotten 
possession  of  the  government  somewhat  as  in  the 
time  of  Jackson,  but,  unlike  either  Jefferson  or  Jack- 
son, the  desire  to  secure  control  came  not  from  fear 
of  the  government,  but  from  tlie  belief  that  govern- 
ment should  be  an  organ  for  the  advancement  of  the 
interests  of  society,  that  it  sliould  actively  and 
consciously  strive  to  promote  the  welfare  of  the 
community.  Instead,  therefore,  of  being  afraid  of 
government  as  an  instrument  of  oppression  and  be- 
ing jealous  of  the  extent  of  its  sphere,  he  sought  to 
control  it  that  he  might  widen  its  scope  to  meet  the 
needs  of  an  awakened  social  consciousness.  Like 
James  Wilson,  he  desired  tlie  foundation  of  all  au- 
thority to  flow  from  the  people,  but  he  desired  that 
authority  to  be  strong. 


Theodore  Roosevelt  269 

So  far  as  tlio  Federal  Government  was  concerned, 
the  period  since  the  Civil  War  had  witnessed  a  retro- 
gression rather  than  a  progression  in  the  extent  of 
its  services  to  the  community;  it  had  lagged  behind 
the  needs  of  the  country;  almost  no  serious  attempt 
had  been  nmde  to  control  the  great  combinations  of 
capital  and  labor.  The  most  urgent  considerations 
demanded  that  the  public  should  not  be  made  a  prey 
of  either,  and  protection  could  be  secured  through 
no  other  agency  than  that  of  government,  for  no 
other  was  strong  enough.  From  the  peculiar  char- 
acter of  our  constitutional  arrangements,  with  its 
dual  system  of  government,  and  from  the  national 
extent  of  the  combinations,  the  logical  and  legal 
source  of  the  power  to  exercise  the  necessary  protec- 
tion must  lie  in  the  Federal  Government. 

The  country  at  large  acquiesced  in  this  view  and  a 
rapid  succession  of  measures  followed,  each  tending 
to  increase  the  power  and  the  extent  of  the  control 
of  the  Federal  Government  over  the  daily  life  of  the 
citizens.^  But  the  extent  of  the  change  can  no  more 
be  measured  by  the  laws  upon  the  statute  book  than 
could  that  effected  by  the  election  of  Jefferson  or 
Jackson.  It  is  a  change  of  ideals,  and  its  ultimate 
effect  upon  our  constitutional  life  and  practices  can 
be  estimated  only  by  subsequent  generations. 

The  source  of  the  government's  power  over  so  large 
a  part  of  our  industrial  activity  lies  in  its  con- 
trol of  interstate  commerce,  and  that  clause  of 
the  Constitution  conferring  the  control  has  been 
the  authority  for  most  of  the  legislation  of  recent 

1  Cf.  Pierce,  Franklin,  Federal  Usurpation,  and  Stimson,  J.  F. 
The  American  Constitution. 


270  Story  of  the  Constitution 

years    which    smacks    of    paternalism    and    even    of 
socialism. 

The  need  for  uniformity  in  the  regulation  of  com- 
merce between  the  States  and  with  foreign  nations 
was  one  of  the  leading  causes  for  summoning  the 
Constitutional  Convention  and  elaborating  a  new 
Constitution.  The  jealousies  and  discriminations  of 
the  States  against  each  other  had  produced  a  de- 
plorable and  unendurable  condition,  which  made  it 
necessary  that  all  commerce  not  within  a  single  State 
should  be  put  under  the  control  of  the  Federal  Gov- 
ernment. The  power  to  regulate  interstate  and 
foreign  commerce  has  always  been  a  source  of  great 
strength  to  the  national  government,  for  the  expan- 
sion of  commerce  has  necessitated  a  corresponding 
expansion  of  the  activities  of  government.  The  de- 
velopment of  great  corporations,  both  for  production 
and  for  transportation,  has  made  interstate  commerce 
a  marvel  of  complexity.  To  meet  the  new  conditions 
laws  have  been  passed  looking  to  their  regulation  by 
the  Federal  Government.  A  supervision  of  this 
character  has  necessitated  the  creation  of  a  host  of 
government  inspectors  and  commissions,  that  has 
gone  far  toward  justifying  the  extreme  individualist 
in  asserting  that  we  are  in  danger  of  erecting  a 
government,  not  of  laws  but  of  men. 


Appendix 


271 


THE  DECLARATION  OF  INDEPENDENCE 

In  Congress,  July  J^,  1116 

The  Unanimous  Declaration  of  the  Thirteen 
United  States  of  America 

WHEN  in  the  Course  of  human  events,  it  becomes 
necessary  for  one  people  to  dissolve  the  political 
bands  which  have  connected  them  with  another,  and  to 
assume  among  the  Powers  of  the  earth,  the  separate  and 
equal  station  to  which  the  Laws  of  Nature  and  of  Na- 
ture's God  entitle  them,  a  decent  respect  to  the  opinions 
of  mankind  requires  that  they  should  declare  the  causes 
which  impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men 
are  created  equal,  that  they  are  endowed  by  their  Creator 
with  certain  unalienable  Rights,  that  among  these  are 
Life,  Liberty,  and  the  pursuit  of  Happiness.  That  to 
secure  these  rights,  Governments  are  instituted  among 
Men,  deriving  their  just  powers  from  the  consent  of  the 
governed,  That  whenever  any  Form  of  Government  be- 
comes destructive  of  these  ends,  it  is  the  Right  of  the 
People  to  alter  or  to  abolish  it,  and  to  institute  new 
Government,  laying  its  foundation  on  such  principles 
and  organizing  its  powers  in  such  form,  as  to  them  shall 
seem  most  likely  to  effect  their  Safety  and  Haj)piness. 
Prudence,  indeed,  will  dictate  thnt  Governments  long 
established  should  not  be  changed  for  light  and  transient 

i8  2  7i 


274  Story  of  the  Constitution 

causes;  and  accordingly  all  experience  hath  shown,  that 
mankind  are  more  disposed  to  suffer,  while  evils  are 
sufferable,  than  to  right  themselves  by  abolishing  the 
forms  to  which  they  are  accustomed.  But  when  a  long 
train  of  abuses  and  usurpations,  pursuing  invariably  the 
same  Object,  evinces  a  design  to  reduce  them  under  ab- 
solute Despotism,  it  is  their  right,  it  is  their  duty,  to 
throw  off  such  Government,  and  to  provide  new  Guards 
for  their  future  security. — Such  has  been  the  patient  suf- 
ferance of  these  Colonies ;  and  such  is  now  the  necessity 
which  constrains  them  to  alter  their  former  Systems  of 
Government.  The  history  of  the  present  King  of  Great 
Britain  is  a  history  of  repeated  injuries  and  usurpations, 
all  having  in  direct  object  the  establishment  of  an  ab- 
solute Tyranny  over  these  States.  To  prove  this,  let 
Facts  be  submitted  to  a  candid  world. 

He  has  refused  his  Assent  to  Laws,  the  most  whole- 
some and  necessary  for  the  public  good. 

He  has  forbidden  his  Governors  to  pass  Laws  of  im- 
mediate and  pressing  importance,  unless  suspended  in 
their  operation  till  his  Assent  should  be  obtained;  and 
when  so  suspended,  he  has  utterly  neglected  to  attend 
to  them. 

He  has  refused  to  pass  other  Laws  for  the  accommoda- 
tion of  large  districts  of  people,  unless  those  people  would 
relinquish  the  right  of  Representation  in  the  Legislature, 
a  right  inestimable  to  them  and  formidable  to  tyrants 
only. 

He  has  called  together  legislative  bodies  at  places  un- 
usual, uncomfortable,  and  distant  from  the  depository 
of  their  Public  Records,  for  the  sole  purpose  of  fatiguing 
them  into  compliance  with  his  measures. 

He  has  dissolved  Representative  Houses  repeatedly,  for 
opposing  with  manly  firmness  his  invasions  on  the  rights 
of  the  i)eople. 

He  has  refused  for  a  long  time,  after  such  dissolutions, 


The  Declaration  of  Independence     275 

to  cause  others  to  be  elected ;  whereby  the  Legislative 
Powers,  incapable  of  Annihilation,  have  returned  to  the 
People  at  large  for  their  exercise;  the  State  remaining 
in  the  mean  time  exj)osed  to  all  the  dangers  of  invasion 
from  without,  and  convulsions  within. 

He  has  endeavored  to  i)revent  the  population  of  these 
States;  for  that  purpose  obstructing  the  Laws  for  Natu- 
ralization of  Foreigners;  refusing  to  pass  others  to 
encourage  their  migration  hither,  and  raising  the  condi- 
tions of  new  Appropriations  of  Lands. 

He  has  obstructed  the  Administration  of  Justice,  by 
refusing  his  Assent  to  Laws  for  establishing  Judiciary 
Powers. 

He  has  made  Judges  dependent  on  his  Will  alone,  for 
the  tenure  of  their  ottices,  and  the  amount  and  payment 
of  their  salaries. 

He  has  erected  a  multitude  of  New  Oflflces,  and  sent 
hither  swarms  of  Officers  to  harass  our  People,  and  eat 
out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  Standing 
Armies  without  the  Tonsent  of  our  legislature. 

He  has  affected  to  render  the  Military  independent  of 
and  superior  to  the  Civil  Power. 

He  has  combined  with  others  to  subject  us  to  a  juris- 
diction foreign  to  our  constitution,  and  unacknowledged 
by  our  laws ;  giving  his  Assent  to  their  Acts  of  pretended 
Legislation : 

For  quartering  large  bodies  of  armed  troops  among  us : 

For  protecting  them,  by  a  mock  Trial,  from  Punish- 
ment for  any  Murders  which  they  should  commit  on  the 
Inhabitants  of  these  States : 

For  cutting  off  our  Trade  with  all  parts  of  the 
world : 

For  imposing  taxes  on  us  without  our  Consent: 

For  depriving  us  in  many  cases,  of  the  benefits  of  Trial 
by  Jury: 


276  Story  of  the  Constitution 

For  transporting  ns  beyond  Seas  to  be  tried  for  pre- 
tended offences: 

For  abolishing  the  free  System  of  English  Laws  in  a 
neighboring  Province,  establishing  therein  an  Arbitrary 
government,  and  enlarging  its  Boundaries  so  as  to  render 
it  at  once  an  example  and  fit  instrument  for  introducing 
the  same  absolute  rule  into  these  Colonies: 

For  taking  away  our  Charters,  abolishing  our  most 
valuable  Laws,  and  altering  fundamentally  the  Forms  of 
our  Governments : 

For  suspending  our  own  Legislatures,  and  declaring 
themselves  invested  with  Power  to  legislate  for  us  in  all 
cases  whatsoever. 

He  has  abdicated  Government  here,  by  declaring  us  out 
of  his  Protection  and  waging  War  against  us. 

He  has  plundered  our  seas,  ravaged  our  Coasts,  burnt 
our  towns,  and  destroyed  the  lives  of  our  people. 

He  is  at  this  time  transporting  large  armies  of  foreign 
mercenaries  to  compleat  the  works  of  death,  desolation, 
and  tyranny,  already  begun  with  circumstances  of 
Cruelty  &  perfidy  scarcely  paralleled  in  the  most  bar- 
barous ages,  and  totally  unworthy  the  Head  of  a  civilized 
nation. 

He  has  constrained  our  fellow  Citizens  taken  Captive 
on  the  high  Seas  to  bear  Arms  against  their  Country,  to 
become  the  executioners  of  their  friends  and  Brethren, 
or  to  fall  themselves  by  their  Hands. 

He  has  excited  domestic  insurrections  amongst  us,  and 
has  endeavored  to  bring  on  the  inhabitants  of  our  fron- 
tiers, the  merciless  Indian  Savages,  whose  known  rule  of 
warfare  is  an  undistinguished  destruction  of  all  ages, 
sexes,  and  conditions. 

In  every  stage  of  these  Oppressions  We  have  Peti- 
tioned for  Redress  in  the  most  humble  terms:  Our  re- 
peated Petitions  have  been  answered  only  by  repeated 
injury.     A  Prince,  whose  character  is  thus  marked  by 


The  Declaration  of  Independence     277 

every  act  wliicli  may  define  a  Tyrant,  is  unfit  to  be  the 
ruler  of  a  free  People. 

Nor  have  We  been  wanting  in  attention  to  our  British 
brethren.  We  have  warned  them  from  time  to  time  of 
attemi)ts  by  their  legislature  to  extend  an  unwarrantable 
jurisdicti(m  over  us.  We  have  reminded  them  of  the 
circumstances  of  our  emigration  and  settlement  here. 
We  have  a})i)ealed  to  their  native  justice  and  magna- 
nimity, and  we  hav^e  conjured  them  by  the  ties  of  our 
common  kindred  to  disavow  these  usurpations,  which 
would  inevitably  interrupt  our  connections  and  corre- 
spondence. They  too  have  been  deaf  to  the  voice  of 
justice  and  of  consanguinity.  We  must,  therefore,  ac- 
quiesce in  the  necessity,  which  denounces  our  Separation, 
and  hold  them,  as  we  hold  the  rest  of  mankind.  Enemies 
in  War,  in  Peace  Friends. 

We,  therefore,  the  Representatives  of  the  United  States 
of  America,  in  General  Congress,  Assembled,  appealing 
to  the  Supreme  Judge  of  the  world  for  the  rectitude  of 
our  intentions,  do,  in  the  Name,  and  by  Authority  of  the 
good  People  of  these  Colonies,  solemnly  publish  and  de- 
clare. That  these  United  Colonies  are,  and  of  Right  ought 
to  be  Free  and  Independent  States;  that  they  are  Ab- 
solved from  all  Allegiance  to  the  British  Crown,  and  that 
all  political  connecticm  between  them  and  the  State  of 
Great  Britain,  is  and  ought  to  be  totally  dissolved;  and 
that  as  Free  and  Independent  States,  they  have  full 
Power  to  levy  War,  conclude  Peace,  contract  Alliances, 
establish  Commerce,  and  to  do  all  other  Acts  and  Things 
which  Independent  States  may  of  right  do.  And  for 
the  support  of  this  Declaration,  with  a  firm  reliance  on 
the  Protection  of  Divine  Providence,  we  mutually  pledge 
to  each  other  our  Lives,  our  Fortunes,  and  our  sacred 
Honor. 

JOHN  HANCOCK. 


2  78  Story  of  the  Constitution 

New  BampsMre — Josiah  Bartlett^  Wm.  Whipple, 
Matthew  Thornton. 

Massachusetts  Bay — Saml.  Adams,  John  Adams,  Robt. 
Treat  Paine,  Elbridge  Gerry. 

Rhode  Island — Step.  Hopkins,  William  Ellery. 

Gomiecticut — Roger  Sherman,  Sam'el  Huntington, 
Wm.  Williams,  Oliver  Wolcott. 

New  York — Wm.  Floyd,  Phil.  Livingston,  Frans. 
Lewis,  Lewis  Morris. 

Neio  Jersey — Richd.  Stockton,  Jno.  Witherspoon, 
Fras.  Hopkinson,  John  Hart,  Abra.  Clark. 

Pennsylvania — Robt.  Morris,  Benjamin  Rush,  Benja. 
Franklin,  John  Morton,  Geo.  Clymer,  Jas.  Smith,  Geo. 
Taylor,  James  Wilson,  Geo.  Ross. 

Delaware — Caesar  Rodney,  Geo.  Read,  Tho.  M'Kban. 

Maryland — Samuel  Chase,  Wm.  Paca,  Thos.  Stone, 
Charles  Carroll  of  Carrollton. 

Virginia — George  Wythe,  Richard  Henry  Lee,  Th 
Jefferson,  Benja.  Harrison,  Thos.  Nelson,  jr.,  Francis 
Lightfoot  Lee,  Carter  Braxton. 

North  Carolina — Wm.  Hooper,  Joseph  Hewes,  John 
Penn. 

South  Carolina — ^Edward  Rutledge,  Thos.  Heyward, 
Junr.,  Thomas  Lynch,  Junr.,  Arthur  Middleton. 

Georgia — Button  Gwinnett,  Lyman  Hall,  Geo. 
Walton. 


THE  ARTICLES  OF  CONFEDERATION 

Articles  of  Confederation  and  Perpetual  Union  hetween 
the  States  of  New  Hampshire,  Massachusetts  Bay, 
Rhode  Island  and  Providence  Plantations,  Connecti- 
cut, New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina, 
and  Georgia. 

Article  I. — The  style  of  this  Confederacy  shall  be, 
"  The  United  States  of  America." 

Art.  II, — Each  State  retains  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and 
right,  which  is  not  by  this  Confederation  expressly  dele- 
gated to  the  United  States  in  Congress  assembled. 

Art.  III. — The  said  States  hereby  severally  enter  into 
a  firm  league  of  friendship  with  each  other,  for  their 
common  defence,  the  security  of  their  liberties,  and  their 
mutual  and  general  welfare,  binding  themselves  to  assist 
each  other  against  all  force  offered  to,  or  attacks  made 
upon  them,  or  any  of  them,  on  account  of  religion,  sov- 
ereignty, trade,  or  any  other  pretence  whatever. 

Art.  IV. — The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  dif- 
ferent States  in  this  Union,  the  free  inhabitants  of  each 
of  these  States,  paupers,  vagabonds,  and  fugitives  from 
justice  excepted,  shall  be  entitled  to  all  privileges  and 
immunities  of  free  citizens  in  the  several  States ;  and  the 
people  of  each  State  shall  have  free  ingress  and  egress 

279 


28o  Story  of  the  Constitution 

to  and  from  any  other  iState,  and  shall  enjoy  therein  all 
the  privileges  of  trade  and  commerce  subject  to  the  same 
duties,  impositions,  and  restrictions  as  the  inhabitants 
thereof  respectively ;  provided  that  such  restrictions  shall 
not  extend  so  far  as  to  prevent  the  removal  of  property 
imported  into  any  State  to  any  other  State  of  which  the 
owner  is  an  inhabitant ;  provided  also,  that  no  imposition, 
duties,  or  restriction  shall  be  laid  by  any  State  on  the 
property  of  the  United  States  or  either  of  them.  If  any 
person  guilty  of,  or  charged  with,  treason,  felony,  or 
other  high  misdemeanor  in  any  State  shall  flee  from  jus- 
tice and  be  found  in  any  of  the  United  States,  he  shall, 
upon  demand  of  the  governor  or  executive  power  of  the 
State  from  which  he  fled,  be  delivered  up  and  removed 
to  the  State  having  jurisdiction  of  his  offence.  Full  faith 
and  credit  shall  be  given  in  each  of  these  States  to  the 
records,  acts,  and  judicial  proceedings  of  the  courts  and 
magistrates  of  every  other  State. 

Art.  V. — For  the  more  convenient  management  of  the 
general  interests  of  the  United  States,  delegates  shall  be 
annually  appointed  in  such  manner  as  the  Legislature  of 
each  State  shall  direct,  to  meet  in  Congress  on  the  first 
Monday  in  November,  in  every  year,  with  a  power  re- 
served to  each  State  to  recall  its  delegates,  or  any  of 
them,  at  any  time  within  the  year,  and  to  send  others 
in  their  stead  for  the  remainder  of  the  year.  No  State 
shall  be  represented  in  Congress  by  less  than  two,  nor 
by  more  than  seven  members;  and  no  person  shall  be 
capable  of  being  a  delegate  for  more  than  three  years  in 
any  term  of  six  years;  nor  shall  any  person,  being  a 
delegate,  be  capable  of  holding  any  office  under  the  United 
States  for  which  he,  or  another  for  his  benefit,  receives 
any  salary,  fees,  or  emolument  of  any  kind.  Each  State 
shall  maintain  its  oAvn  delegates  in  any  meeting  of  the 
States  and  while  they  act  as  members  of  the  Committee 
of  the  States.     In  determining  questions  in  the  United 


The  Articles  of  Confederation        281 

states  in  Congress  assembled,  each  State  shall  have  one 
vote.  Freedom  of  speech  and  debate  in  Congress  shall 
not  be  impeached  or  questioned  in  any  court  or  place  out 
of  Congress;  and  the  members  of  Congress  shall  be  pro- 
tected in  their  persons  from  arrests  and  imprisonment 
during  the  time  of  their  going  to  and  from,  and  at- 
tendance on,  Congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

Art.  VI. — No  State,  without  the  consent  of  the  United 
States,  in  Congress  assembled,  shall  send  any  embassy 
to,  or  receive  any  embassy  from,  or  enter  into  any  con- 
ference, agreement,  alliance,  or  treaty  with  any  king, 
prince,  or  state;  nor  shall  any  person  holding  any  ofifice 
of  profit  or  trust  under  the  United  States,  or  any  of 
them,  accept  of  any  present,  emolument,  ofifice,  or  title 
of  any  kind  whatever  from  any  king,  prince,  or  foreign 
state;  nor  shall  the  United  States,  in  Congress  assembled, 
or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty, 
confederation,  or  alliance  whatever  between  them,  with- 
out the  consent  of  the  United  States,  in  Congress  as- 
sembled, specifying  accurately  the  purposes  for  which 
the  same  is  to  be  entered  into,  and  how  long  it  shall 
continue. 

No  State  shall  lay  any  imposts  or  duties  which  may 
interfere  with  any  stipulations  in  treaties  entered  into 
by  the  United  States,  in  Congress  assembled,  with  any 
king,  prince,  or  state,  in  pursuance  of  any  treaties  al- 
ready proposed  by  Congress  to  the  courts  of  France 
and  Spain. 

No  vessel  of  war  shall  be  kept  up  in  time  of  peace  by 
any  State,  except  such  number  only  as  shall  be  deemed 
necessary  by  the  United  States,  in  Congress  assembled, 
for  the  defence  of  such  State  or  its  trade,  nor  shall  any 
body  of  forces  be  kept  up  by  any  State  in  time  of  peace, 
except   such   number    only   as,   in    the   Judgment   of   the 


282 


Story  of  the  Constitution 


United  States,  in  Congress  assembled,  shall  be  deemed 
requisite  to  garrison  the  forts  necessary  for  the  defence 
of  such  State;  but  every  State  shall  always  keep  up  a 
well-regulated  and  disciplined  militia,  sufficiently  armed 
and  accoutred,  and  shall  provide  and  constantly  have 
ready  for  use  in  public  stores  a  due  number  of  field- 
pieces  and  tents,  and  a  proper  quantity  of  arms,  am- 
munition, and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent 
of  the  United  States,  in  Congress  assembled,  unless  such 
State  be  actually  invaded  by  enemies,  or  shall  have  re- 
ceived certain  advice  of  a  resolution  being  formed  by 
some  nation  of  Indians  to  invade  such  State,  and  the 
danger  is  so  imminent  as  not  to  admit  of  a  delay  till 
the  United  States,  in  Congress  assembled,  can  be  con- 
sulted; nor  shall  any  State  grant  commissions  to  any 
ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal, 
except  it  be  after  a  declaration  of  war  by  the  United 
States,  in  Congress  assembled,  and  then  only  against  the 
kingdom  or  state,  and  the  subjects  thereof,  against  which 
war  has  been  so  declared,  and  under  such  regulations  as 
shall  be  established  by  the  United  States,  in  Congress 
assembled,  unless  such  State  be  infested  by  pirates,  in 
which  case  vessels  of  war  may  be  fitted  out  for  that 
occasion,  and  kept  so  long  as  the  danger  shall  continue, 
or  until  the  United  States,  in  Congress  assembled,  shall 
determine  otherwise. 

Art.  VII. — When  land  forces  are  raised  by  any  State 
for  the  common  defence,  all  officers  of  or  under  the  rank 
of  Colonel  shall  be  appointed  by  the  Legislature  of  each 
State  respectively  by  whom  such  forces  shall  be  raised, 
or  in  such  manner  as  such  State  shall  direct,  and  all 
vacancies  shall  be  filled  up  by  the  State  which  first 
made  the  appointment. 

Art,  VIII. — All  charges  of  war,  and  all  other  expenses 
that  shall  be  incurred  for  the  common  defence,  or  gen- 


The  Articles  of  Confederation        283 

eral  welfare,  and  allowed  by  the  United  States,  in  Con- 
gress assembled,  shall  be  defrayed  out  of  a  common 
treasury,  which  shall  be  supplied  by  the  several  States 
in  proportion  to  the  value  of  all  land  within  each  State, 
granted  to,  or  surveyed  for,  any  person,  as  such  land 
and  the  buildings  and  improvements  thereon  shall  be 
estimated,  according  to  such  mode  as  the  United  States, 
in  Congress  assembled,  shall,  from  time  to  time,  direct 
and  appoint.  The  taxes  for  paying  that  proportion  shall 
be  laid  and  levied  by  the  authority  and  direction  of  the 
Legislatures  of  the  several  States,  within  the  time  agreed 
upon  by  the  United  States,  in  Congress  assembled. 

Art.  IX. — The  United  States,  in  Congress  assembled, 
shall  have  the  sole  and  exclusive  right  and  power  of  de- 
termining on  peace  and  war,  except  in  the  cases  men- 
tioned in  the  sixth  Article;  of  sending  and  receiving 
ambassadors;  entering  into  treaties  and  alliances,  pro- 
vided that  no  treaty  of  commerce  shall  be  made,  whereby 
the  legislative  power  of  the  respective  States  shall  be 
restrained  from  imposing  such  imposts  and  duties  on 
foreigners  as  their  own  people  are  subjected  to,  or  from 
prohibiting  the  exportation  or  importation  of  any  species 
of  goods  or  commodities  whatever;  of  establishing  rules 
for  deciding,  in  all  cases,  what  captures  on  land  and 
water  shall  be  legal,  and  in  what  manner  prizes  taken 
by  land  or  naval  forces  in  the  service  of  the  United 
States  shall  be  divided  or  appropriated;  of  granting 
letters  of  marque  and  reprisal  in  times  of  peace;  ap- 
pointing courts  for  the  trial  of  piracies  and  felonies  com- 
mitted on  the  high  seas;  and  establishing  courts  for 
receiving  and  determining  finally  appeals  in  all  cases  of 
captures;  provided  that  no  member  of  Congress  shall  be 
appointed  a  judge  of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also 
be  the  last  resort  on  appeal  in  all  disputes  and  dif- 
ferences   now    subsisting,    or    that    hereafter    may    arise 


284  Story  of  the  Constitution 

between  two  or  more  States  concerning  boundary,  juris- 
diction, or  any  other  cause  whatever;  which  authority 
shall  always  be  exercised  in  the  manner  following: 
Whenever  the  legislative  or  executive  authority,  or  law- 
ful agent  of  any  State  in  controversy  with  another,  shall 
present  a  petition  to  Congress,  stating  the  matter  in 
question,  and  praying  for  a  hearing,  notice  thereof  shall 
be  given  by  order  of  Congress  to  the  legislative  or  ex- 
ecutive authority  of  the  other  State  in  controversy,  and 
a  day  assigned  for  the  appearance  of  the  parties  by  their 
lawful  agents,  who  shall  then  be  directed  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a 
court  for  hearing  and  determining  the  matter  in  ques- 
tion ;  but  if  they  cannot  agree,  Congress  shall  name  three 
persons  out  of  each  of  the  United  States,  and  from  the 
list  of  such  persons  each  party  shall  alternately  strike 
out  one,  the  petitioners  beginning,  until  the  number  shall 
be  reduced  to  thirteen;  and  from  that  number  not  less 
than  seven  nor  more  than  nine  names,  as  Congress  shall 
direct,  shall,  in  the  presence  of  Congress,  be  drawn  out 
by  lot;  and  the  persons  whose  names  shall  be  so  drawn, 
or  any  five  of  them,  shall  be  commissioners  or  judges,  to 
hear  and  finally  determine  the  controversy,  so  always  as 
a  major  part  of  the  judges  who  shall  hear  the  cause 
shall  agree  in  the  determination ;  and  if  either  party 
shall  neglect  to  attend  at  the  day  appointed,  without 
showing  reasons  which  Congress  shall  judge  sufficient, 
or  being  present,  shall  refuse  to  strike,  the  Congress 
shall  proceed  to  nominate  three  persons  out  of  each 
State,  and  the  secretary  of  Congress  shall  strike  in  be- 
half of  such  party  absent  or  refusing;  and  the  judgment 
and  sentence  of  the  court,  to  be  appointed  in  the  man- 
ner before  prescribed,  shall  be  final  and  conclusive;  and 
if  any  of  the  parties  shall  refuse  to  submit  to  the  au- 
thoi-ity  of  such  court,  or  to  appear  or  defend  their  claim 
or   cause,   the   court   shall    nevertheless    proceed    to   pro- 


The  Articles  of  Confederation        285 

nounce  sentence  or  judgment,  which  shall  in  like  man- 
ner be  final  and  decisive;  the  judgment  or  sentence  and 
other  proceedings  l)eing  in  either  case  transmitted  lo 
Congress,  and  lodged  among  the  acts  of  Congress  for  the 
security  of  the  parties  concerned;  provided,  that  every 
commissioner,  before  he  sits  in  judgment,  shall  take  an 
oath,  to  be  administered  by  one  of  the  judges  of  the 
supreme  or  superior  court  of  the  State  where  the  cause 
shall  be  tried,  "  well  and  truly  to  hear  and  determine 
the  matter  in  question,  according  to  the  best  of  his  judg- 
ment, without  favor,  affection,  or  hope  of  reward."  Pro- 
vided, also,  that  no  State  shall  be  deprived  of  territory 
for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  States, 
whose  jurisdictions,  as  they  may  respect  such  lands,  and 
the  States  which  passed  such  grants  are  adjusted,  the 
said  grants  or  either  of  them  being  at  the  same  time 
claimed  to  have  originated  antecedent  to  such  settlement 
of  jurisdiction,  shall,  on  the  petition  of  either  party  to 
the  Congress  of  the  United  States,  be  finally  determined, 
as  near  as  may  be,  in  the  same  manner  as  is  before 
prescribed  for  deciding  disputes  respecting  territorial 
jurisdiction  between  different  States. 

The  United  States,  in  Congress  assembled,  shall  also 
have  the  sole  and  exclusive  right  and  power  of  regulating 
the  alloy  and  value  of  coin  struck  by  their  own  authority, 
or  by  that  of  the  respective  States;  fixing  the  standard 
of  weights  and  measures  throughout  the  United  States; 
regulating  the  trade  and  managing  all  affairs  with  the 
Indians,  not  members  of  any  of  the  States;  provided 
that  the  legislative  right  of  any  State,  within  its  own 
limits,  be  not  infringed  or  violated;  establishing  and 
regulating  post-offices  from  one  State  to  another,  through- 
out all  the  Ignited  States,  and  exacting  such  postage  on 
the  papers  passing  through  the  same  as  may  be  requisite 


286  Story  of  the  Constitution 

to  defray  the  expenses  of  the  said  office;  appointing  all 
officers  of  the  land  forces  in  the  service  of  the  United 
States,  excepting  regimental  officers;  appointing  all  the 
officers  of  the  naval  forces,  and  commissioning  all  officers 
whatever  in  the  service  of  the  United  States;  making 
rules  for  the  government  and  regulation  of  the  said  land 
and  naval  forces,  and  directing  their  operations. 

The  United  States,  in  Congress  assembled  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess  of 
Congress,  to  be  denominated  "  A  Committee  of  the 
States,"  and  to  consist  of  one  delegate  from  each  State, 
and  to  appoint  such  other  committees  and  civil  officers 
as  may  be  necessary  for  managing  the  general  affairs  of 
the  United  States  under  their  directions;  to  appoint 
one  of  their  number  to  preside;  provided  that  no  person 
be  allowed  to  serve  in  the  office  of  president  more  than 
one  year  in  any  term  of  three  years;  to  ascertain  the 
necessary  sums  of  money  to  be  raised  for  the  service  of 
the  United  States,  and  to  ajjpropriate  and  apply  the 
same  for  defraying  the  public  exfjenses ;  to  borrow  money 
or  emit  bills  on  the  credit  of  the  United  States,  trans- 
mitting every  half  year  to  the  respective  States  an  ac- 
count of  the  sums  of  money  so  borrowed  or  emitted;  to 
build  and  equip  a  navy;  to  agree  upon  the  number  of 
land  forces,  and  to  make  requisitions  from  each  State 
for  its  quota,  in  proportion  to  the  number  of  white  in- 
habitants in  such  State,  which  requisition  shall  be  bind- 
ing; and  thereupon  the  Legislature  of  each  State  shall 
appoint  the  regimental  officers,  raise  the  men,  and  clothe, 
arm,  and  equip  them  in  a  soldier-like  manner,  at  the 
expense  of  the  United  States;  and  the  officers  and  men 
so  clothed,  armed,  and  equipped  shall  march  to  the  place 
appointed,  and  within  the  time  agreed  on  by  the  United 
States,  in  Congress  assembled;  but  if  the  United  States, 
in  Congress  assembled,  shall,  on  consideration  of  circum- 
tances,  judge  proper   that   any   State  should  not   raise 


The  Articles  of  Confederation        287 

men,  or  should  raise  a  smaller  number  than  its  quota, 
and  that  any  other  State  should  raise  a  greater  number 
of  men  than  the  quota  thereof,  such  extra  number  shall 
be  raised,  olficered,  clothed,  armed,  and  equipped  in  the 
same  manner  as  the  quota  of  such  State,  unless  the 
Lejiislatnre  of  such  State  shall  judge  that  such  extra 
number  can  not  be  safely  spared  out  of  the  same,  in 
which  case  they  shall  raise,  officer,  clothe,  arm,  and 
equip  as  many  of  such  extra  number  as  they  judge  can 
be  safely  si)ared,  and  the  officers  and  men  so  clothed, 
armed,  and  equipped  shall  march  to  the  place  appointed, 
and  within  the  time  agreed  on  by  the  United  States,  in 
Congress  assembled. 

The  United  States,  in  Congress  assembled,  shall  never 
engage  in  a  war,  nor  grant  letters  of  marque  and  reprisal 
in  time  of  peace,  nor  enter  into  any  treaties  or  alliances, 
nor  coin  money,  nor  regulate  the  value  thereof,  nor  as- 
certain the  sums  and  expenses  necessary  for  the  defence 
and  welfare  of  the  United  States,  or  any  of  them,  nor 
emit  bills,  nor  borrow  money  on  the  credit  of  the  United 
States,  nor  appropriate  money,  nor  agree  u])on  the  num- 
ber of  vessels  of  war  to  be  built  or  purchased,  or  the 
number  of  land  or  sea  forces  to  be  raised,  nor  appoint 
a  commander-in-chief  of  the  army  or  navy,  unless  nin? 
States  assent  to  the  same,  nor  shall  a  question  on  any 
other  point,  except  for  adjourning  from  day  to  day,  be 
determined,  unless  by  the  votes  of  a  majority  of  the 
United  States,  in  Congress  assembled. 

The  Congress  of  the  T"^nited  States  shall  have  pow^r 
to  adjourn  to  any  time  within  the  year,  and  to  any  place 
within  the  United  States,  so  that  no  period  of  adjourn- 
ment be  for  a  longer  duration  than  the  space  of  six 
months,  and  shall  i)ublish  the  journal  of  their  proceed- 
ings monthly,  except  such  parts  thereof  relating  to 
treaties,  alliances,  or  military  operations  as  in  theu' 
judgment  require  secrecy;  and  the  yeas  and  nays  of  the 


288  Story  of  the  Constitution 

delegates  of  each  State,  on  any  question,  shall  be  entered 
on  the  journal  when  it  is  desired  by  any  delegate;  and 
the  delegates  of  a  State,  or  any  of  them,  at  his  or  their 
request,  shall  be  furnished  with  a  transcript  of  the  said 
journal  except  such  parts  as  are  above  excepted,  to  lay 
before  the  Legislatures  of  the  several  States. 

Art.  X. — The  committee  of  the  States,  or  any  nine  of 
them,  shall  be  authorized  to  execute,  in  the  recess  of 
Congress,  such  of  the  powers  of  Congress  as  the  United 
States,  in  Congress  assembled,  by  the  consent  of  nine 
States,  shall,  from  time  to  time,  think  expedient  to  vest 
them  with;  provided  that  no  power  be  delegated  to  the 
said  Committee,  for  the  exercise  of  which,  by  the  Articles 
of  Confederation,  the  voice  of  nine  States  in  the  Congress 
of  the  United  States  assembled  is  requisite. 

Art.  XI. — Canada,  acceding  to  this  Confederation,  and 
joining  in  the  measures  of  the  United  States,  shall  be 
admitted  into,  and  entitled  to  all  the  advantages  of  this 
Union ;  but  no  other  colony  shall  be  admitted  into  the 
same,  unless  such  admission  be  agreed  to  by  nine  States. 

Art.  XII. — All  bills  of  credit  emitted,  moneys  bor- 
rowed, and  debts  contracted  by  or  under  the  authority 
of  Congress,  before  the  assembling  of  the  United  States, 
in  pursuance  of  the  present  Confederation,  shall  be 
deemed  and  considered  as  a  charge  against  the  United 
States,  for  payment  and  satisfaction  whereof  the  said 
United  States  and  the  public  faith  are  hereby  solemnly 
pledged. 

Art.  XIII. — Every  State  shall  abide  by  the  determina- 
tions of  the  United  States,  in  Congress  assembled,  on  all 
questions  which  by  this  Confederation  are  submitted  to 
them.  And  the  Articles  of  this  Confederation  shall  be 
inviolably  observed  by  every  State,  and  the  Union  shall 
be  i)erpetual ;  nor  shall  any  alteration  at  any  time 
hereafter  be  made  in  any  of  them,  unless  such  altera- 
tion be  agreed  to  in  a  Congress  of  the  United  States, 


The  Articles  of  Confederation        289 

and    be    afterwards    confirmed    by    the    Legislatures    of 
every  State. 


And  whereas  it  hath  pleased  the  great  Governor  of 
the  world  to  incline  the  hearts  of  the  Legislatures  we 
respectively  represent  in  ('ongress  to  approve  of,  and  to 
authorize  us  to  ratify,  the  said  Articles  of  Confederation 
and  perpetual  Union,  know  ye,  that  we,  the  undersigned 
delegates,  by  virtue  of  the  power  and  authority  to  us 
,  given  for  that  purpose,  do,  by  these  presents,  in  the  name 
and  in  behalf  of  our  respective  constituents,  fully  and 
entirely  ratify  and  confirm  each  and  every  of  the  said 
Articles  of  Confederation  and  perpetual  Union,  and  all 
and  singular  the  matter  and  things  therein  contained. 
And  we  do  further  solemnly  plight  and  engage  the  faith 
of  our  respective  constituents,  that  they  shall  abide  by 
the  determinations  of  the  United  States,  in  Congress 
assembled,  on  all  questions  which  by  the  said  Confedera- 
tion are  submitted  to  them ;  and  that  the  Articles  thereof 
shall  be  inviolably  observed  by  the  States  we  respectively 
represent,  and  that  the  Union  shall  be  perpetual. 


In  witness  whereof  we  have  hereunto  set  our  hands  in 
Congress.  Done  at  Philadelphia  in  the  State  of 
Pennsylvania  the  ninth  day  of  July  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  seventy- 
eight,  and  in  the  third  year  of  the  independence  of 
America. 


On  the  part  d  'behalf  of  the  State  of  New  Hampshire. 

JosiAH  Bartlett,  John  Wentworth,  Junr. 

August  8,  1778. 


290  Story  of  the  Constitution 

0)1  the  part  and  hehalf  of  the  State  of  Massachusetts  Bay. 

John  Hancock,  Francis  Dana, 

Samuel  Adams,  James  Lovell, 

Elbridge  Gerry,  Samuel  Holten. 

On  the  part  and  hehalf  of  the  State  of  Rhode  Island  and 
Providence  Plantations. 

William  Ellbry,  John  Collins. 

Henry  Marchant, 

On  the  part  and  hehalf  of  the  State  of  Connecticut. 

Roger  Sherman,  Titus  Hosmeb, 

Samuel  Huntington,  Andrew  Adams. 

Oliver  Wolcott, 

On  the  part  and  hehalf  of  the  State  of  New  York. 

Jas.  Duane,  •  Wm.  Duer, 

Era.  Lewis,  Gouv.   Morris. 

On  the  part  and  in  hehalf  of  the  State  of  New  Jersey, 
Novr.  26,  1778. 

Jno.  Witherspoon,  Nathl.  Scudder. 

On  the  part  and  hehalf  of  the  State  of  Pennsylvania. 

RoBT.  Morris,  William  Clingan, 

Daniel  Roberdeau,  Joseph     Reed,     22d     July, 

JoNA.  Bayard  Smith,  1778. 

On  the  part  &  hehalf  of  the  State  of  Delaware. 

Tho.  M'Kean,  Nicholas  Van  Dykb. 

Feby.  12,  1779. 
John   Dickinson, 

May  5th,  1779. 


The  Articles  of  Confederation        291 

On  the  part  and  hehalf  of  the  State  of  Maryland. 

John   Hanson,  Daniel  Carroll, 

Mareh  1,  1781.  Mar.  1,  1781. 

On  the  part  and  hehalf  of  the  State  of  Virginia. 

Richard  Henry  Lee,  Jno.  Harvib, 

John  Banister,  Francis  Lightfoot  Lbb. 

Thomas  Adams, 

On  the  part  and  hehalf  of  the  State  of  No.  Carolina. 

John  Penn,  July  21st,  1778.    Jno.  Williams. 
Corns,   Harnett, 

On  the  part  &  hehalf  of  the  State  of  South  Carolina, 

Henry  Laurens,  Richd.  Hutson, 

William  Henry  Drayton,      Thos.  Hayward,  Junr. 
Jno.  Mathews, 

On  the  part  &  hehalf  of  the  State  of  Georgia. 

Jno.  Walton,  24th  July,        Edwd.  Langworthy. 

1778. 
Edwd.  Telfair, 


THE  CONSTITUTION  OF  THE  UNITED  STATES 

We,  the  people  of  the  United  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defence,  promote 
the  general  welfare,  and  secure  the  blessings  of  liberty 
to  ourselves  and  our  posterity,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America. 

ARTICLE  I. 

SECTION    I. 

All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist 
of  a  Senate  and  House  of  Representatives. 

SECTION   II. 

The  House  of  Representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the 
several  States,  and  the  electors  in  each  State  shall  have 
the  qualifications  requisite  for  electors  of  the  most  nu- 
merous branch  of  the  State  legislature. 

No  person  shall  be  a  Representative  who  shall  not  have 
attained  the  age  of  twenty-five  years,  and  been  seven 
years  a  citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  inhabitant  of  that  State  in  which 
he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers,  whicli 
shall  be  determined  by  adding  to  the  whole  number  of 

292 


Constitution  of  the  United  States      293 

free  i)ersons,  including  tliose  bound  to  service  for  a  term 
of  years,  and  excluding  Indians  not  taxed,  three  fifths 
of  all  other  persons.  The  actual  enumeration  shall  be 
made  within  three  years  after  the  first  meeting  of  the 
Congress  of  the  United  States,  and  within  every  sub- 
sequent term  of  ten  years,  in  such  manner  as  they  shall 
by  law  direct.  The  number  of  Representatives  shall  not 
exceed  one  for  every  thirty  thousand,  but  each  State 
shall  have  at  least  one  Representative;  and  until  such 
enumeration  shall  be  made,  the  State  of  l^ew  Hampshire 
shall  be  entitled  to  choose  three,  Massachusetts  eight, 
Rhode  Island  and  Providence  Plantations  one,  Connecti- 
cut five,  New  York  six.  New  Jersey  four,  Pennsylvania 
eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North 
Carolina  five,  South  Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  representation  from  any 
State,  the  executive  authority  thereof  shall  issue  writs 
of  election  to  fill  such  vacancies. 

The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers,  and  shall  have  the  sole  power 
of  impeachment. 

SECTION  III. 

The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  legislature 
thereof,  for  six  years;  and  each  Senator  shall  have  one 
vote. 

Immediately  after  they  shall  be  assembled  in  con- 
sequence of  the  first  election,  they  shall  be  divided  as 
equally  as  may  be  into  three  classes.  The  seats  of  the 
Senators  of  the  first  class  shall  be  vacated  at  the  ex- 
piration of  the  second  year;  of  the  second  class,  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class,  at 
the  expiration  of  the  sixth  year,  so  that  one-third  may 
be  chosen  every  second  year ;  and  if  vacancies  happen  by 


294  Story  of  the  Constitution 

resignation  or  otherwise  during  the  recess  of  the  legis- 
lature of  any  State,  the  executive  thereof  may  make 
temporary  appointments  until  the  next  meeting  of  the 
legislature,  which  shall  then  fill  such  vacancies. 

No  person  shall  be  a  Senator  who  shall  not  have  at- 
tained to  the  age  of  thirty  years,  and  been  nine  years 
a  citizen  of  the  United  StateSj  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

The  Vice-President  of  the  United  States  shall  be  Presi- 
dent of  the  Senate,  but  shall  have  no  vote,  unless  they 
be  equally  divided. 

The  Senate  shall  choose  their  other  officers,  and  also 
a  President  pro  tempore  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  office  of  Presi- 
dent of  the  United  States. 

The  Senate  shall  have  the  sole  power  to  try  all  im- 
jjeachments.  When  sitting  for  that  purpose,  they  shall 
be  on  oath  or  affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall  preside: 
and  no  person  shall  be  convicted  without  the  concurrence 
of  two  thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification 
to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit 
under  the  United  States;  but  the  party  convicted  shall, 
nevertheless,  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment,  according  to  law. 

SECTION  IV. 

The  times,  places,  and  manner  of  holding  elections  for 
Senators  and  Representatives  shall  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the  Congress  may 
at  any  time  by  law  make  or  alter  such  regulations,  ex- 
cept as  to  the  places  of  choosing  Senators. 


Constitution  of  the  United  States      295 

The  Congress  shall  assemble  at  least  once  in  every 
year,  and  snch  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a  different 
day. 

SECTION  V. 

Each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members,  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business;  but  a 
smaller  number  may  adjourn  from  day  to  day,  and  may 
be  authorized  to  compel  the  attendance  of  absent  mem- 
bers, in  such  manner,  and  under  such  penalties,  as  each 
house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceeding, 
punish  its  members  for  disorderly  behavior,  and  with  the 
concurrence  of  two  thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  parts 
as  may  in  their  judgment  require  secrecy,  and  the  yeas 
and  nays  of  the  members  of  either  house  on  any  question 
shall,  at  the  desire  of  one  fifth  of  those  present,  be 
entered  on  the  journal. 

Neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which 
the  two  houses  shall  be  sitting. 

SECTION  VI. 

The  Senators  and  Representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law  and 
paid  out  of  the  Treasury  of  the  United  States.  They 
shall,  in  all  cases  except  treason,  felony,  and  breach  of 
the  peace,  be  privileged  from  arrest  during  their  at- 
tendance at  the  session  of  their  respective  houses,  and 
in  going  to  and  returning  from  the  same;  and  for  any 


296  Story  of  the  Constitution 

speech  or  debate  in  either  house  they  shall  not  be  ques- 
tioned in  any  other  place. 

No  Senator  or  Representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased  during  such  time;  and  no  person  holding 
any  office  under  the  United  States  shall  be  a  member  of 
either  house  during  his  continuance  in  office. 

SECTION  VII. 

All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose 
or  concur  with  amendments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate  shall,  before  it  become  a  law, 
be  presented  to  the  President  of  the  United  States ;  if  he 
approve  he  shall  sign  it,  but  if  not  he  shall  return  it, 
with  his  objections,  to  that  house  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  on 
their  journal  and  proceed  to  reconsider  it.  If  after  such 
reconsideration  two  thirds  of  that  house  shall  agree  to 
pass  the  bill,  it  shall  be  sent,  together  with  the  objections, 
to  the  other  house,  by  which  it  shall  likewise  be  recon- 
sidered, and  if  approved  by  two  thirds  of  that  house  it 
shall  become  a  law.  But  in  all  such  cases  the  votes  of 
both  houses  shall  be  determined  by  yeas  and  nays,  and 
the  names  of  the  persons  voting  for  and  against  the  bill 
shall  be  entered  on  the  journal  of  each  house  respectively. 
If  any  bill  shall  not  be  returned  by  the  President  within 
ten  days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  same  shall  be  a  law,  in  like  man- 
ner as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall 
not  be  a  law. 


Constitution  of  the  United  States      297 

Every  order,  resolution,  or  vote  to  which  the  concur- 
rence of  the  Senate  and  Ilouse  of  Representatives  may 
be  necessary  (except  on  a  question  of  adjournment)  shall 
be  presented  to  the  President  of  the  United  States ;  and 
before  the  same  shall  take  effect,  shall  be  approved  by 
him,  or  being  disapproved  by  him,  shall  be  repassed  by 
two  thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the 
case  of  a  bill. 

SECTION  VIII. 

The  Congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay  the  debts  and  provide 
for  the  common  defence  and  general  welfare  of  the  United 
States;  but  all  duties,  imposts,  and  excises  shall  be  uni- 
form throughout  the  United  States ; 

To  borrow  money  on  the  credit  of  the  United  States; 

To  regulate  commerce  with  foreign  nations  and  among 
the  several  States,  and  with  the  Indian  tribes ; 

To  establish  an  uniform  rule  of  naturalization,  and 
uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin,  and  fix  the  standard  of  weights  and 
measures ; 

To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States; 

To  establish  post-oflfices  and  post-roads ; 

To  promote  the  progress  of  science  and  useful  arts  by 
securing  for  limited  times  to  authors  and  inventors  the 
exclusive  right  to  their  respective  writings  and  discov- 
eries ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court ; 

To  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas  and  offences  against  the  law  of  nations; 


298  Story  of  the  Constitution 

To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water ; 

To  raise  and  support  armies,  but  no  appropriation  of 
money  to  that  use  shall  be  for  a  longer  term  than  two 
years ; 

To  provide  and  maintain  a  navy; 

To  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces; 

To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions ; 

To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may 
be  employed  in  the  service  of  the  United  States,  reserving 
to  the  States  respectively  the  appointment  of  the  officers, 
and  the  authority  of  training  the  militia  according  to 
the  discipline  prescribed  by  Congress; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever 
over  such  district  (not  exceeding  ten  miles  square)  as 
may,  by  cession  of  particular  States  and  the  acceptance 
of  Congress,  become  the  seat  of  the  Government  of  the 
United  States,  and  to  exercise  like  authority  over  all 
places  purchased  by  the  consent  of  the  legislature  of  the 
State  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dockyards,  and  other  needful 
buildings ;  and 

To  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  this  Constitution  in  the  Gov- 
ernment of  the  United  States,  or  in  any  department  or 
officer  thereof. 

SECTION    IX. 

The  migration  or  importation  of  such  persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit 
shall  not  be  prohibited  by  the  Congress  prior  to  the  year 


Constitution  of  the  United  States      299 

one  thousand  eij^ht  hundred  and  eight,  but  a  tax  or  duty 
may  be  imposed  on  such  importation,  not  exceeding  ten 
dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when  in  cases  of  rebellion  or  in- 
vasion the  public  safety  may  require  it. 

No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless 
in  proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  State. 

No  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  State  over  those  of 
another;  nor  shall  vessels  bound  to  or  from  one  State  be 
obliged  to  enter,  clear,  or  pay  duties  in  another. 

No  money  shall  be  drawn  from  the  Treasury  but  in 
consequence  of  appropriations  made  by  law;  and  a  regu- 
lar statement  and  account  of  the  receipts  and  expendi- 
tures of  all  public  money  shall  be  published  from  time 
to  time. 

No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  holding  any  office  of  profit  or 
trust  under  them  shall,  without  the  consent  of  the  Con- 
gress, accept  of  any  present,  emolument,  office,  or  title, 
of  any  kind  whatever  from  any  king,  prince,  or  foreign 
State. 

SECTION   X. 

No  State  shall  enter  into  any  treaty,  alliance,  or  con- 
federation ;  grant  letters  of  marque  and  reprisal ;  coin 
money;  emit  bills  of  credit;  make  anything  but  gold  and 
silver  coin  a  tender  in  payment  of  debts;  pass  any  bill 
of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligation  of  contracts,  or  grant  any  title  of  nobility. 


300  Story  of  the  Constitution 

No  state  shall,  without  the  consent  of  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its  inspection 
laws;  and  the  net  produce  of  all  duties  and  imposts, 
laid  by  any  State  on  imports  or  exports,  shall  be  for 
the  use  of  the  Treasury  of  the  United  States;  and  all 
such  laws  shall  be  subject  to  the  revision  and  control  of 
the  Congress. 

No  State  shall,  without  the  consent  of  Congress,  lay 
any  duty  of  tonnage,  keep  troops  or  ships  of  war  in  time 
of  peace,  enter  into  any  agreement  or  compact  with  an- 
other State  or  with  a  foreign  power,  or  engage  in  war, 
unless  actually  invaded  or  in  such  imminent  danger  as 
will  not  admit  of  delay. 

ARTICLE  11. 

SECTION    I. 

The  executive  power  shall  be  vested  in  a  President  of 
the  United  States  of  America.  He  shall  hold  his  office 
during  the  term  of  four  years,  and  together  with  the 
Vice-President,  chosen  for  the  same  term,  be  elected  as 
follows : 

Each  State  shall  appoint,  in  such  manner  as  the  legis- 
lature thereof  may  direct,  a  number  of  electors,  equal 
to  the  whole  number  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress ;  but  no 
Senator  or  Representative,  or  person  holding  an  office 
of  trust  or  profit  under  the  United  States,  shall  be 
appointed  an  elector. 

[The  electors  shall  meet  in  their  respective  States  and 
vote  by  ballot  for  two  persons,  of  whom  one  at  least  shall 
not  be  an  inhabitant  of  the  same  State  with  themselves. 
And  they  shall  make  a  list  of  all  the  persons  voted  for, 
and  of  the  number  of  votes  for  each ;  which  list  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  seat 


Constitution  of  the  United  States      301 

of  government  of  the  United  States,  directed  to  the 
President  of  the  Senate.  The  President  of  the  Senate 
shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall 
then  be  counted.  The  person  having  the  greatest  number 
of  votes  shall  be  the  President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed;  and 
if  there  be  more  than  one  who  have  such  majority,  and 
have  an  equal  number  of  votes,  then  the  House  of  Repre- 
sentatives shall  immediately  choose  by  ballot  one  of  them 
for  President;  and  if  no  person  have  a  majority,  then 
from  the  five  highest  on  the  list  the  said  House  shall  in 
like  manner  choose  the  President.  But  in  choosing  the 
President  the  votes  shall  be  taken  by  States,  the  repre- 
sentation from  each  State  having  one  vote;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from 
two  thirds  of  the  States,  and  a  majority  of  all  the  States 
shall  be  necessary  to  a  choice.  In  every  case,  after  the 
choice  of  the  President,  the  person  having  the  greatest 
number  of  votes  of  the  electors  shall  be  the  Vice- 
President.  But  if  there  should  remain  two  or  more  who 
have  equal  votes,  the  Senate  shall  choose  from  them  by 
ballot  the  Vice-President.]  ^ 

The  Congress  may  determine  the  time  of  choosing  the 
electors  and  the  day  on  which  they  shall  give  their  votes, 
which  day  shall  be  the  same  throughout  the  United 
States. 

No  person  except  a  natural-born  citizen,  or  a  citizen 
of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President; 
neither  shall  any  person  be  eligible  to  that  office  who 
shall  not  have  attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident  within  the  United 
States. 

1  This  clause  of  the  Constitution  has  been  amended.  See 
twelfth  article  of  the  amendments. 


302  Story  of  the  Constitution 

In  case  of  the  removal  of  the  President  from  office,  or 
of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  de- 
volve on  the  Vice-President,  and  the  Congress  may  by 
law  provide  for  the  case  of  removal,  death,  resignation, 
or  inability,  both  of  the  President  and  Vice-President, 
declaring  what  officer  shall  then  act  as  President,  and 
such  officer  shall  act  accordingly  until  the  disability  be 
removed  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  times,  receive  for  his  serv- 
ices a  compensation,  which  shall  neither  be  increased  nor 
diminished  during  the  period  for  which  he  may  have  been 
elected,  and  he  shall  not  receive  within  that  period  any 
other  emolument  from  the  United  States  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office  he  shall 
take  the  following  oath  or  affirmation : 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and 
will  to  the  best  of  my  ability  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States." 

SECTION   II. 

The  President  shall  be  Commander-in-chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  militia 
of  the  several  States  when  called  into  the  actual  service 
of  the  United  States;  he  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices,  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offences  against  the  United 
States,  except  in  cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  make  treaties,  provided  two  thirds 
of  the  Senators  present  concur ;  and  he  shall  nominate, 
and,  by  and  with  the  advice  and  consent  of  the  Senate, 


Constitution  of  the  United  States 


.-)'-':) 


shall  appoint  ambassadors,  other  public  ministers  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are 
not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  law ;  but  the  Congress  may  by  law  vest 
the  appointment  of  such  inferior  officers,  as  they  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or 
in  the  heads  of  departments. 

The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by 
granting  commissions  which  shall  expire  at  the  end  of 
their  next  session. 

SECTION    III. 

He  shall  from  time  to  time  give  to  the  Congress  in- 
formation of  the  state  of  the  Union,  and  recommend  to 
their  consideration  such  measures  as  he  shall  judge  neces- 
sary and  expedient;  he  may,  on  extraordinary  occasions, 
convene  both  houses,  or  either  of  them,  and  in  case  of 
disagreement  between  them  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as  he 
shall  think  proper;  he  shall  receive  ambassadors  and 
other  public  ministers;  he  shall  take  care  that  the  laws 
be  faithfully  executed,  and  shall  commission  all  the 
officers  of  the  United  States. 

SECTION  IV. 

The  President,  Vice-President,  and  all  civil  officers  of 
the  United  States  shall  be  removed  from  office  on  im- 
peachment for  and  conviction  of  treason,  bribery,  or 
other  high  crimes  and  misdemeanors. 

ARTICLE  III. 

SECTION    I. 

The  judicial  power  of  the  United  States  shall  be  vested 


304  Story  of  the  Constitution 

in  one  Supreme  Courtj  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish. 
The  judges,  both  of  tlie  supreme  and  inferior  courts,  shall 
hold  their  offices  during  good  behavior  and  shall,  at 
stated  times,  receive  for  their  services  a  compensation 
which  shall  not  be  diminished  during  their  continuance 
in  office. 

SECTION   II. 

The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made, 
under  their  authority;  to  all  cases  afifecting  ambassadors, 
other  public  ministers,  and  consuls;  to  all  cases  of  ad- 
miralty and  maritime  jurisdiction ;  to  controversies  to 
which  the  United  States  shall  be  a  party ;  to  controversies 
between  two  or  more  States;  between  a  State  and  citi- 
zens of  another  State;  between  citizens  of  different 
States ;  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  States,  citizens,  or 
subjects. 

In  all  cases  affecting  ambassadors,  other  public  minis- 
ters and  consuls,  and  those  in  which  a  State  shall  be  a 
party,  the  Supreme  Court  shall  have  original  jurisdiction. 
In  all  the  other  cases  before  mentioned  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as  to  law 
and  fact,  with  such  exceptions  and  under  such  regu- 
lations as  the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment, 
shall  be  by  jury;  and  such  trial  shall  be  held  in  the 
State  where  the  said  crimes  shall  have  been  committed; 
but  when  not  committed  within  any  State,  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  may  by 
law  have  directed. 


Constitution  of  the  United  States      305 

SECTION   III. 

Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  con- 
victed of  treason  nnless  on  the  testimony  of  two  witnesses 
to  the  same  overt  act,  or  on  confession  in  oi^en  conrt. 

The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood  or  forfeiture  except  during  the  life  of 
the  person  attainted. 

ARTICLE  IV. 

SECTION   I. 

Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may  by  general  laws 
prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof. 

SECTION    II. 

The  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in 
another  State,  shall,  on  demand  of  the  executive  authority 
of  the  State  from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  State  having  jurisdiction  of  the  crime. 

No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  con- 
sequence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may 
be  due. 


3o6  Story  of  the  Constitution 

SECTION    III. 

New  states  may  be  admitted  by  the  Congress  into  this 
Union;  but  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State ;  nor  any  State 
be  formed  by  the  junction  of  two  or  more  States  or  parts 
of  States,  without  the  consent  of  the  legislatures  of  the 
States  concerned  as  well  as  of  the  Congress, 

The  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States;  and 
nothing  in  this  Constitution  shall  be  so  construed  as 
to  prejudice  any  claims  of  the  United  States  or  of  any 
particular  State. 

SECTION  IV. 

The  United  States  shall  guarantee  to  every  State  in 
this  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion,  and  on  application 
of  the  legislature,  or  of  the  executive  (when  the  legisla- 
ture cannot  be  convened),  against  domestic  violence. 

ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Con- 
stitution, or,  on  the  application  of  the  legislatures  of 
two  thirds  of  the  several  States,  shall  call  a  convention 
for  proposing  amendments,  which  in  either  case  shall  be 
valid  to  all  intents  and  purposes  as  part  of  this  Consti- 
tution, when  ratified  by  the  legislatures  of  three  fourths 
of  the  several  States,  or  by  conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may 
be  proposed  by  the  Congress,  provided  that  no  amend- 
ments which  may  be  made  prior  to  the  year  one  thou- 
sand eight  hundred  and  eight  shall  in  any  manner  affect 


Constitution  of  the  United  States      307 

the  first  and  fourth  clauses  in  the  ninth  section  of  the 
first  article;  and  that  no  State,  without  its  consent,  shall 
be  deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI. 

All  debts  contracted  and  engagements  entered  into,  be- 
fore the  adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this  Constitution  as 
under  the  confederation. 

This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treat- 
ies made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the 
land;  and  the  judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  Constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  the  several  State  legislatures,  and 
all  executive  and  judicial  officers  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  oath 
or  affirmation  to  support  this  Constitution ;  but  no  relig- 
ious test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States. 

ARTICLE  VII. 

The  ratification  of  the  conventions  of  nine  States  shall 
be  sufficient  for  the  establishment  of  this  Constitution 
between  the  States  so  ratifying  the  same. 

Done  in  convention  by  the  unanimous  consent  of  the 
States  present,  the  seventeenth  day  of  September,  in 
the  year  of  our  Lord  one  thousand  seven  hundred 
and  eighty-seven,  and  of  the  independence  of  the 
United  States  of  America  the  twelfth.  In  witness 
whereof,  we  have  hereunto  subscribed  our  names. 


3o8  Story  of  the   Constitution 

George  Washington,  President,  and  Deputy  from  Vir- 
ginia. 

New  Hampshire — John  Langdon,  Nicholas  Gilman. 

Massachusetts — Nathaniel  Gorham,  Rufus  King, 

Connecticut — William  Samuel  Johnson,  Roger  Sherman. 

New  York — Alexander  Hamilton. 

New  Jersey — William  Livingston,  David  Brearly,  Wil- 
liam Paterson,  Jonathan  Dayton. 

Pennsylvania — Benjamin  Franklin,  Thomas  Mifflin, 
Robert  Morris,  George  Clymer,  Thomas  Fitzsimons, 
Jared  Ingersoll,  James  Wilson,  Gouverneur  Morris. 

Delaware — George  Read,  Gunning  Bedford,  Jr.,  John 
Dickinson,  Richard  Bassett,  Jacob  Broom. 

Maryland — James  McHenry,  Daniel  of  St.  Thomas 
Jenifer,  Daniel  Carroll. 

Virginia — John  Blair,  James  Madison,  Jr. 

North  Carolina — William  Blount,  Richard  Dobbs 
Spaight,  Hugh  Williamson. 

South  Carolina — John  Rutledge,  Charles  Cotesworth 
Pinckney,  Charles  Pinckney,  Pierce  Butler. 

Georgia — William  Few,  Abraham  Baldwin. 

Attest:     William  Jackson,  Secretary. 


AMENDMENTS 
ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof; 
or  abridging  the  freedom  of  speech  or  of  the  press;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  government  for  a  redress  of  grievances. 

ARTICLE  II. 
A  well-regulated  militia  being  necessary  to  the  security 


Constitution  of  the  United  States      309 

of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed. 

ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  warrants  shall 
issue  but  upon  probable  cause,  supported  by  oath  or  af- 
firmation, and  particularly  describing  the  place  to  be 
searched,  and  the  person  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases  arising  in 
the  laud  or  naval  forces,  or  in  the  militia,  when  in  actual 
service  in  time  of  war  or  public  danger;  nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice  put 
in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself,  nor 
be  deprived  of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation. 

ARTICLE  VL 

In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been  pre- 


3IO  Story  of  the  Constitution 

viously  ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation;  to  be  confronted 
with  the  witnesses  against  him;  to  have  comimlsory  pro- 
cess for  obtaining  witnesses  in  his  favor,  and  to  have 
the  assistance  of  counsel  for  his  defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved,  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively  or  to  the  people. 

ARTICLE  XL 

The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects 
of  any  foreign  State. 


Constitution  of  the  United  States      311 

ARTICLE  XII. 

The  electors  shall  meet  in  their  respective  States  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves;  they  shall  name  in  their  ballots  the 
person  voted  for  as  President,  and  in  distinct  ballots  the 
person  voted  for  as  Vice-President,  and  they  shall  make 
distinct  lists  of  all  persons  voted  for  as  President  and  of 
all  persons  voted  for  as  Vice-President,  and  of  the  nnmber 
of  votes  for  each ;  which  lists  they  shall  sign  and  certify, 
and  transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  President  of  the  Senate. 
The  President  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the  cer- 
tificates and  the  votes  shall  then  be  counted.  .  The  person 
having  the  greatest  number  of  votes  for  President  shall 
be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  electors  appointed ;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives  shall 
choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two  thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  And  if  the  House 
of  Representatives  shall  not  choose  a  President  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before 
the  fourth  day  of  March  next  following,  then  the  Vice- 
President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  President. 

The  person  having  the  greatest  number  of  votes  as 
Vice-President  shall  be  the  Vice-President,  if  such  num- 
ber be  a  majority  of  the  whole  number  of  electors  ap- 


312  Story  of  the  Constitution 

pointed ;  and  if  no  person  have  a  majority,  then  from  the 
two  highest  numbers  on  the  list  the  Senate  shall  choose 
the  Vice-President;  a  quorum  for  the  purpose  shall  con- 
sist of  two  thirds  of  the  whole  number  of  Senators,  and 
a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States. 

ARTICLE  XIII. 

Section  1.  Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States  or  any  place  subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

ARTICLE  XIV. 

Section  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due  pro- 
cess of  law ;  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

Section  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in  each 
State,  excluding  Indians  not  taxed.  But  when  the  right 
to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice-President  of  the  United  States,  Rep- 
resentatives in  Congress,  the  executive  and  judicial  officers 
of  a  State,  or  the  members  of  the  legislature  thereof,  is 


Constitution  of  the  United  States      313 

denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation 
in  rebellion,  or  other  crime,  the  basis  of  representati(m 
therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such 
State. 

Section  3.  No  person  shall  be  a  Senator  or  Represen- 
tative in  Congress,  or  elector  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  military,  under  the 
United  States  or  under  any  State,  who,  having  previously 
taken  an  oath  as  a  member  of  Congress,  or  as  an  officer  of 
the  United  States,  or  as  a  member  of  any  State  legisla- 
ture, or  as  an  executive  or  judicial  officer  of  any  State, 
to  support  the  Constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the 
same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may,  by  a  vote  of  two  thirds  of  each 
house,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts  in- 
curred for  payment  of  pensions  and  bounties  for  services 
in  suppressing  insurrection  or  rebellion,  shall  not  be 
questioned.  But  neither  the  United  States  nor  any  State 
shall  assume  or  pay  any  debt  or  obligation  incurred  in 
aid  of  insurrection  or  rebellion  against  the  United  States, 
or  any  claim  for  the  loss  or  emancipation  of  any  slave; 
but  all  such  debts,  obligations,  and  claims  shall  be  held 
illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 

Section  1.     The  right  of  citizens  of  the  United  States 


314  Story  of  the  Constitution 

to  vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color,  or 
previous  condition  of  servitude. 

Section  2.     The  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 


JEFFERSON'S  OPINION  ON  THE  CONSTITUTION- 
ALITY OF  A  NATIONAL  BANK 


I  CONSIDER  the  foundation  of  the  Constitution  as  laid 
on  this  ground :  That  "  all  powers  not  delegated  to  the 
United  States,  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  or  to  the  people." 
(Xllth  amendment.)  To  take  a  single  step  beyond  the 
boundaries  thus  specially  drawn  around  the  powers  of 
Congress,  is  to  take  possession  of  a  boundless  field  of 
power,  no  longer  susceptible  of  any  definition. 

The  incorporation  of  a  bank,  and  the  powers  assumed 
by  this  bill,  have  not,  in  my  opinion,  been  delegated  to 
the  United  States,  by  the  Constitution. 

1.  They  are  not  among  the  powers  specially  enumer- 
ated: for  these  are:  1st.  A  power  to  lay  taxes  for  the 
purpose  of  paying  the  debts  of  the  United  States;  but 
no  debt  is  paid  by  this  bill  nor  any  tax  laid.  Were  it 
a  bill  to  raise  money,  its  origination  in  the  Senate  would 
condemn  it  by  the  Constitution. 

2.  "To  borrow  money."  But  this  bill  neither  borrows 
money  nor  insures  the  borrowing  it.  .  .  . 

3.  To  "  regulate  commerce  with  foreign  nations,  and 
among  the  States,  and  with  the  Indian  tribes."  To  erect 
a  bank,  and  to  regulate  commerce,  are  very  different 
acts.  He  who  erects  a  bank,  creates  a  subject  of  com- 
merce in  its  bills ;  so  does  he  who  makes  a  bushel  of 
wheat,  or  digs  a  dollar  out  of  the  mines;  yet  neither  of 
these  persons  regulates  commerce  thereby.  .  .  . 

315 


3i6  Story  of  the  Constitution 

II.  Nor  are  they  within  either  of  the  general  phrases, 
which  are  the  two  following : 

1.  To  lay  taxes  to  provide  for  the  general  welfare  of 
the  United  States,  that  is  to  say,  "  to  lay  taxes  for  the 
purpose  of  providing  for  the  general  welfare."  For  the  lay- 
ing of  taxes  is  the  power,  and  the  general  welfare  the 
purpose  for  which  the  power  is  to  be  exercised.  They 
are  not  to  lay  taxes  ad  libitum  for  any  purpose  they 
please;  but  only  to  pay  the  debts  or  provide  for  the 
icelfare  of  the  Union.  In  like  manner  they  are  not  to 
do  anything  they  please  to  provide  for  the  general  wel- 
fare, but  only  to  lay  taxes  for  that  purpose.  To  con- 
sider the  latter  phrase,  not  as  describing  the  purpose  of 
the  first,  but  as  giving  a  distinct  and  independent  power 
to  do  any  act  they  please,  which  might  be  for  the  good 
of  the  Union,  would  render  all  the  preceding  and  sub- 
sequent enumerations  of  power  completely  useless. 

It  would  reduce  the  whole  instrument  to  a  single 
phrase,  that  of  instituting  a  Congress  with  power  to  do 
whatever  would  be  for  the  good  of  the  United  States; 
and,  as  they  would  be  the  sole  judges  of  the  good  or  evil,  it 
w^ould  be  also  a  power  to  do  whatever  evil  they  please. . . . 

2.  The  second  general  phrase  is  "  to  make  all  laws 
necessary  and  proper  for  carrying  into  execution  the 
enumerated  powers."  But  they  can  all  be  carried  into 
execution  without  a  bank.  A  bank  therefore  is  not  neces- 
sary, and  consequently  not  authorized  by  this  phrase. 

It  has  been  urged  that  a  bank  will  give  great  facility 
or  convenience  in  the  collection  of  taxes.  Suppose  this 
were  true:  yet  the  Constitution  allows  only  the  means 
which  are  "  necessary  "  not  those  which  are  merely  "  con- 
venient "  for  effecting  the  enumerated  powers.  If  such 
a  latitude  of  construction  be  allowed  to  this  phrase  as 
to  give  any  non-enumerated  power,  it  will  go  to  every 
one,  for  there  is  not  one  which  ingenuity  may  not  tor- 
ture into  a  convenience  in  some  instance  or  other,  to 


Jefferson's  Opinion  on  National  Bank     317 

someone  of  so  long  a  list  of  enumerated  powers.  It 
would  swallow  up  all  the  delegated  i)owerSj  and  reduce 
the  whole  to  one  power,  as  before  observed.  Therefore  it 
was  that  the  Constitution  restrained  them  to  the  neces- 
sary means,  that  is  to  say,  to  those  means  without  which 
the  grant  of  power  would  be  nugatory. 


HAMILTON'S    OPINION    AS    TO    THE    CONSTITU- 
TIONALITY OF  THE   BANK  OF  THE  UNITED 
STATES 

The  Secretary  of  the  Treasury  having  perused  with  at- 
tention the  papers  containing  the  opinions  of  the  Secre- 
tary of  State  and  Attorney-General,  concerning  the 
constitutionality  of  the  bill  establishing  a  National  Bank, 
proceeds,  according  to  the  order  of  the  President,  to 
submit  the  reasons  which  have  induced  him  to  entertain 
a  different  opinion.  .  .  . 

In  entering  upon  the  argument,  it  ought  to  be  pre- 
mised that  the  objections  of  the  Secretary  of  State  and 
Attorney-General  are  founded  on  a  general  denial  of  the 
authority  of  the  United  States  to  erect  corporations. 
The  latter,  indeed,  expressly  admits,  that  if  there  be 
anything  in  the  bill  which  is  not  warranted  by  the 
Constitution,  it  is  the  clause  of  incorporation. 

Now  it  appears  to  the  Secretary  of  the  Treasury  that 
this  general  principle  is  inherent  in  the  very  definition 
of  government,  and  essential  to  every  step  of  progress 
to  be  made  by  the  United  States,  namely:  That  every 
power  vested  in  a  government  is  in  its  nature  sovereign, 
and  includes,  by  force  of  the  term,  a  right  to  employ  all 
the  means  requisite  and  fairly  applicable  to  the  attain- 
ment of  the  ends  of  such  power,  and  which  are  not  pre- 
cluded by  restrictions  and  exceptions  specified  in  the 
Constitution,  or  not  immoral,  or  not  contrary  to  the 
essential  ends  of  political  society. 

318 


Hamilton's  Opinion  on  National  Bank     319 

This  principle,  in  its  apiilicntion  to  government  in  gen- 
eral, would  be  admitted  as  an  axiom;  and  it  will  be 
incumbent  upon  those  who  may  incline  to  deny  it,  1o 
prove  a  dislinclion,  and  to  show  that  a  rule  which,  in 
the  general  system  of  things,  is  essential  to  the  pre- 
servation of  the  social  order,  is  inapplicable  to  the  United 
States. 

The  circumstance  that  the  powers  of  sovereignty  are 
in  this  country  divided  between  the  National  and  State 
governments,  does  not  afford  the  distinction  required. 
It  does  not  follow  from  this,  that  each  of  the  portion  of 
powers  delegated  to  the  one  or  to  the  other,  is  not  sov- 
ereign with  regard  to  its  proper  objects.  It  will  only 
follow  from  it,  that  each  has  sovereign  power  as  to  certain 
tilings,  and  not  as  to  other  things.  To  deny  that  the 
Government  of  the  United  States  has  sovereign  power, 
as  to  its  declared  purposes  and  trusts,  because  its  power 
does  not  extend  to  all  cases,  would  be  equally  to  deny 
that  the  State  governments  have  sovereign  power  in  any 
case,  because  their  power  does  not  extend  to  every  case. 
The  tenth  section  of  the  first  article  of  the  Constitution 
exhibits  a  long  list  of  very  important  things  which  they 
may  not  do.  And  thus  the  United  States  would  furnish 
the  singular  spectacle  of  a  political  society  without 
sovereignty,  or  of  a  people  governed,  without  government. 

If  it  would  be  necessary  to  bring  proof  to  a  proposition 
so  clear,  as  that  which  affirms  that  the  powers  of  the 
Federal  Government,  as  to  its  ohjects,  were  sovereign, 
there  is  a  clause  of  its  Constitution  which  would  be  de- 
cisive. It  is  that  which  declares  that  the  Constitution, 
and  the  laws  of  the  United  States  made  in  pursuance  of 
it,  and  all  treaties  made,  or  which  shall  be  made,  under 
their  authority,  shall  be  the  supreme  law  of  the  land. 
The  power  which  can  create  the  supreme  latv  of  the  land 
in  any  case,  is  doubtless  sovereign  as  to  such  case. 


320  Story  of  the  Constitution 

The  first  of  these  arguments  [that  is,  against  the  power 
of  the  Federal  Government  to  erect  corporations]  is, 
that  the  foundation  of  the  Constitution  is  laid  on  this 
ground :  "  That  all  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  to  it  by  the 
States,  are  reserved  for  the  States,  or  to  the  people." 
Whence  it  is  meant  to  be  inferred,  that  Congress  can 
in  no  case  exercise  any  power  not  included  in  those  not 
enumerated  in  the  Constitution.  And  it  is  affirmed,  that 
the  power  of  erecting  a  corporation  is  not  included  in 
any  of  the  enumerated  powers. 

The  main  proposition  here  laid  down,  in  its  true  sig- 
nification is  not  to  be  questioned.  It  is  nothing  more 
than  a  consequence  of  this  republican  maxim,  that  all 
government  is  a  delegation  of  power.  But  how  much 
is  delegated  in  each  case,  is  a  question  of  fact,  to  be 
made  out  by  fair  reasoning  and  construction,  upon  the 
particular  provisions  of  the  Constitution,  taking  as 
guides  the  general  principles  and  general  ends  of 
governments. 

It  is  not  denied  that  there  are  implied  as  well  as 
express  powers,  and  that  the  former  are  as  effectually 
delegated  as  the  latter.  And  for  the  sake  of  accuracy 
it  shall  be  mentioned,  that  there  is  another  class  of 
powers,  which  may  be  properly  denominated  resulting 
powers.  It  will  not  be  doubted,  that  if  the  United  States 
should  make  a  conquest  of  any  of  the  territories  of  its 
neighbors,  they  would  possess  sovereign  jurisdiction  over 
the  conquered  territory.  This  would  be  rather  a  result, 
from  the  whole  mass  of  the  powers  of  the  government, 
and  from  the  nature  of  political  society,  than  a  con- 
sequence of  either  of  the  powers  specially  enumerated. 

But  be  this  as  it  may,  it  furnishes  a  striking  illustra- 
tion of  the  general  doctrine  contended  for;  it  shows  an 
extensive  case,  in  which  a  power  of  erecting  corporations 
is  either  implied  in,  or  would  result  from,  some  or  all 


Hamilton's  Opinion  on  National  Bank     321 

of  the  powers  vested  in  the  National  Government.  The 
jurisdiction  acquired  over  such  conquered  country  would 
certainly  be  competent  to  any  sj)ecies  of  legislation. 

To  this  mode  of  reasoning  respecting  the  right  of  em- 
ploying all  the  means  requisite  to  the  execution  of  the 
specified  powers  of  the  Government,  it  is  objected,  that 
none  but  necessary  and  proper  means  are  to  be  em- 
ployed; and  the  Secretary  of  State  maintains,  that  no 
means  are  to  be  considered  as  necessary  but  those  with- 
out which  the  grant  of  the  power  would  be  nugatory. 
Nay,  so  far  does  he  go  in  his  restrictive  interpretation 
of  the  u'ord,  as  even  to  make  the  case  of  necessity  which 
shall  warrant  the  constitutional  exercise  of  the  power 
to  depend  on  casual  and  temporary  circumstances;  an 
idea  which  alone  refutes  the  construction.  The  expedi- 
ency of  exercising  a  particular  power,  at  a  particular 
time,  must,  indeed,  depend  on  circumstances;  but  the 
constitutional  right  of  exercising  it  must  be  uniform  and 
invariable,  the  same  to-day  as  to-morrow. 

Tt  is  essential  to  the  being  of  the  National  Government, 
that  so  erroneous  a  conception  of  the  meaning  of  the 
word  necessary  should  be  exploded. 

It  is  certain  that  neither  the  grammatical  nor  popular 
sense  of  the  term  requires  that  construction.  Accord- 
ing to  both,  necessary  often  means  no  more  than  needful, 
requisite,  incidental,  useful,  or  conducive  to.  It  is  a 
common  mode  of  expression  to  say,  that  it  is  necessary 
for  a  government  or  a  person  to  do  this  or  that  thing, 
when  nothing  more  is  intended  or  understood,  than  that 
the  interests  of  the  government  or  person  require,  or 
will  be  promoted  by,  the  doing  of  this  or  that  thing. 
The  imagination  can  be  at  no  loss  for  exemplifications 
of  the  use  of  the  word  in  this  sense.  And  it  is  the  true 
one  in  which  it  is  to  be  understood  as  used  in  the  Con- 


322  Story  of  the  Constitution 

stitution.  The  whole  turn  of  the  clause  containing  it 
indicates,  that  it  was  the  intent  of  the  Convention,  by 
that  clause,  to  give  a  liberal  latitude  to  the  exercise  of 
the  specified  powers.  The  expressions  have  peculiar  com- 
prehensiveness. They  are  "  to  make  all  laivs  necessary 
and  proper  for  carrying  into  execution  the  foregoing 
poicers,  and  all  other  powers  vested  by  the  Constitution 
in  the  Government  of  the  United  States,  or  in  any  de- 
partment or  officer  thereof." 

To  understand  the  word  as  the  Secretary  of  State  does, 
would  be  to  depart  from  its  obvious  and  popular  sense> 
and  to  give  it  a  restrictive  operation,  an  idea  never  be- 
fore entertained.  It  would  be  to  give  it  the  same  force 
as  if  the  word  ahsolutehj  or  indispensahlij  had  been 
prefixed  to  it. 

Such  a  construction  would  beget  endless  uncertainty 
and  embarrassment.  The  case  must  be  palpable  and 
extreme,  in  which  it  could  be  pronounced,  with  certainty, 
that  a  measure  was  absolutely  necessary,  or  one,  without 
which,  the  exercise  of  a  given  power  would  be  nugatory. 
There  are  few  measures  of  any  government  which  would 
stand  so  severe  a  test.  To  insist  upon  it,  would  be  to 
make  the  criterion  of  the  exercise  of  any  implied  power, 
a  case  of  extreme  necessity;  which  is  rather  a  rule  to 
justify  the  overleaping  of  the  bounds  of  constitutional 
authority,  than  to  govern  the  ordinary  exercise  of  it. 

This  restrictive  interpretation  of  the  word  necessary 
is  also  contrary  to  this  sound  maxim  of  construction; 
namely,  that  the  powers  contained  in  a  constitution  of 
government,  especially  those  which  concern  the  general  ad- 
ministration of  the  affairs  of  a  country,  its  finances,  trade, 
defence,  etc.,  ought  to  be  construed  liberally  in  advance- 
ment of  the  public  good.  This  rule  does  not  depend  on 
the  particular  form  of  a  government,  or  on  the  particular 
demarcation  of  the  boundaries  of  its  powers,  but  on  the 


Hamilton's  Opinion  on  National  Bank     323 

nature  and  object  of  government  itself.  The  means  by 
which  national  exigencies  are  to  be  provided  for,  na- 
tional inconveniences  obviated,  national  prosperity  pro- 
moted, are  of  such  infinite  variety,  extent,  and  complexity, 
that  there  must  of  necessity  be  great  latitude  of  discretion 
in  the  selection  and  application  of  those  means.  Hence, 
consequently,  the  necessity  and  propriety  of  exercising 
the  authorities  intrusted  to  a  government  on  principles 
of  liberal  construction. 

But  while  on  the  one  hand  the  construction  of  the 
Secretary  of  State  is  deemed  inadmissible,  it  will  not 
be  contended,  on  the  other,  that  the  clause  in  question 
gives  any  neio  or  independent  power.  But  it  gives  an 
explicit  sanction  to  the  doctrine  of  implied  powers,  and 
is  equivalent  to  an  admission  of  the  proposition  that 
the  Government,  as  to  its  specified  powers  and  ohjects, 
has  plenary  and  sovereign  authority,  in  some  cases 
paramount  to  the  States;  in  others,  co-ordinate  with  it. 
For  such  is  the  plain  import  of  the  declaration,  that  it 
may  pass  all  laws  necessary  and  proper  to  carry  into 
execution  those  powers. 

It  is  no  valid  objection  to  the  doctrine  to  say,  that  it 
is  calculated  to  extend  the  power  of  the  Government 
throughout  the  entire  sphere  of  State  legislation.  The 
same  thing  has  been  said,  and  may  be  said,  with  regard 
to  every  exercise  of  power  by  implication  or  construction. 

The  moment  the  literal  meaning  is  departed  from,  there 
is  a  chance  of  error  and  abuse.  And  yet  an  adherence 
to  the  letter  of  its  powers  would  at  once  arrest  the 
motions  of  government.  It  is  not  only  agreed,  on  all 
hands,  that  the  exercise  of  constructive  powers  is  in- 
dispensable, but  every  act  which  has  been  passed,  is 
more  or  less  an  exemplification  of  it.  .  .  . 

The  truth  is,  that  the  difficulties  on  this  point  are 
inherent  in  the  nature  of  the  Federal  Constitution;  they 


324  Story  of  the  Constitution 

result  inevitably  from  a  division  of  the  legislative  power. 
The  consequence  of  this  division  is,  that  there  will  be 
cases  clearly  within  the  power  of  the  National  Govern- 
ment; others,  clearly  without  its  powers;  and  a  third 
class,  which  will  leave  room  for  controversy  and  dif- 
ference of  opinion,  and  concerning  w'hich  a  reasonable 
latitude  of  judgment  must  be  allowed. 

But  the  doctrine  which  is  contended  for  is  not  charge- 
able with  the  consequences  imputed  to  it.  It  does  not 
affirm  that  the  National  Government  is  sovereign  in  all 
respects,  but  that  it  is  sovereign  to  a  certain  extent; 
that  is,  to  the  extent  of  the  objects  of  its  specified  powers. 

It  leaves,  therefore,  a  criterion  of  what  is  constitu- 
tional, and  of  what  is  not  so.  This  criterion  is  the 
end,  to  which  the  measure  relates  as  a  mean.  If  the 
end  be  clearly  comprehended  within  any  of  the  specified 
powers,  and  if  the  measure  have  an  obvious  relation  to 
that  end,  and  is  not  forbidden  by  any  particular  provi- 
sion of  the  Constitution,  it  may  safely  be  deemed  to  come 
within  the  compass  of  the  national  authority.  There  is 
also  this  further  criterion,  which  may  materially  assist 
the  decision :  Does  the  proposed  measure  abridge  a  pre- 
existing right  of  any  State  or  of  any  individual?  If  it 
does  not,  there  is  a  strong  presumption  in  favor  of  its 
constitutionality,  and  slighter  relations  to  any  declared 
object  of  the  Constitution  may  be  permitted  to  turn  the 
scale. 

It  is  presumed  to  have  been  satisfactorily  shown  in 
the  course  of  the  preceding  observations: 

1.  That  the  power  of  the  government,  as  to  the  ob- 
jects intrusted  to  its  management,  is,  in  its  nature, 
sovereign. 

2.  That  the  right  of  erecting  corporations  is  one  in- 
herent in,  and  inseparable  from,  the  idea  of  sovereign 
power. 


Hamilton's  Opinion  on  National  Bank     325 

3.  That  the  position,  that  the  Govei-nment  of  the 
United  States  can  exercise  no  power,  but  such  as  is  dele- 
gated to  it  by  its  Constitution,  does  not  militate  against 
this  principle. 

4.  That  the  word  necessary,  in  the  general  clause, 
can  have  no  restrictive  operation  derogating  from  the 
force  of  this  principle;  indeed,  that  the  degree  in  which 
a  measure  is  or  is  not  necessary,  cannot  be  a  test  of 
constitutional  right,  but  of  expediency  only^ 

5.  That  the  power  to  erect  corporations  is  not  to  be 
considered  as  an  independent  or  substantive  power,  but 
as  an  incidental  and  auxiliary  one,  and  was  therefore 
more  properly  left  to  implication,  than  expressly  granted. 

6.  That  the  principle  in  question  does  not  extend  the 
power  of  the  government  beyond  the  prescribed  limits, 
because  it  only  affirms  a  power  to  incorporate  for  pur- 
poses within  the  sphere  of  the  specified  powers. 

And  lastly,  that  the  right  to  exercise  such  a  power  in 
certain  cases  is  unequivocally  granted  in  the  most  posi- 
tive and  comprehensive  terms.  To  all  which  it  only  re- 
mains to  be  added,  that  such  a  power  has  actually  been 
exercised  in  two  very  eminent  instances ;  namely,  in  the 
erection  of  two  governments;  one  northwest  of  the  River 
Ohio,  and  the  other  southwest — the  last  independent  of 
any  antecedent  compact.  And  these  result  in  a  full  and 
complete  demonstration,  that  the  Secretary  of  State  and 
the  Attorney-General  are  mistaken  when  they  deny  gen- 
erally the  power  of  the  National  Government  to  erect 
corporations. 


KENTUCKY  RESOLUTIONS  OF  1798 

The  House  according  to  the  standing  order  of  the 
day,  resolved  itself  into  a  committee  of  the  whole  on 
the  state  of  the  commonwealth,  Mr.  Caldwell  in  the  chair, 
and  after  some  time  spent  therein,  the  Speaker  resumed 
the  chair,  and  Mr.  Caldwell  reported  that  the  committee 
had,  according  to  order,  had  under  consideration  the 
Governor's  address,  and  had  come  to  the  following  reso- 
lutions thereupon,  which  he  delivered  in  at  the  clerk's 
table,  where  they  were  twice  read  and  agreed  to  by  the 
House. 

1.  Resolved,  That  the  several  States  composing  the 
United  States  of  America,  are  not  united  on  the  principle 
of  unlimited  submission  to  their  General  Government; 
but  that  by  compact,  under  the  style  and  title  of  a 
Constitution  for  the  United  States,  and  of  amendments 
thereto,  they  constituted  a  General  Government  for  spe- 
cial purposes,  delegated  to  that  government  certain  defi- 
nite powers,  reserving,  each  State  to  itself,  the  residuary 
mass  of  right  to  their  own  self-government;  and  that 
whensoever  the  General  Government  assumes  undelegated 
powers,  its  acts  are  unauthoritative,  void,  and  of  no 
force:  That  to  this  compact  each  State  acceded  as  a 
State,  and  is  an  integral  party,  its  co-States  forming,  as 
to  itself,  the  other  party:  That  the  government  created 
by  this  compact  was  not  made  the  exclusive  or  final 
judge  of  the  extent  of  the  powers  delegated  to  itself; 
since  that  would  have  made  its  discretion,  and  not  the 

326 


Kentucky  Resolutions  of  1798        327 

Constitution,  the  measure  of  its  powers;  but  that,  as  in 
all  other  cases  of  compact  among  parties  having  no 
common  judge,  each  party  has  an  equal  right  to  judge 
for  itself,  as  well  of  infractionSj  as  of  the  mode  and 
measure  of  redress. 

2.  Resolved,  That  the  Constitution  of  the  United  States 
having  delegated  to  Congress  a  power  to  punish  treason, 
counterfeiting  the  securities  and  current  coin  of  the 
United  States,  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  laws  of  nations,  and 
no  other  crimes  whatever,  and  it  being  true  as  a  general 
principle  and  one  of  the  amendments  to  the  Constitution 
having  also  declared,  "  that  the  powers  not  delegated  to 
the  United  States  by  the  Constitution,  nor  prohibited  by 
it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people  " ;  therefore,  also,  the  same  act  of  Con- 
gress, passed  on  the  14th  day  of  July,  1708,  and  en- 
titled, "  An  act  in  addition  to  the  act  entitled,  an  act 
for  the  punishment  of  certain  crimes  against  the  United 
States";  as  also  the  act  passed  by  them  on  the  27th 
day  of  June,  1798,  entitled,  "  An  act  to  punish  frauds 
committed  on  the  Bank  of  the  United  States"  (and  all 
other  their  acts  which  assume  to  create,  define,  and  pun- 
ish crimes  other  than  those  enumerated  in  the  Consti- 
tution,) are  altogether  void,  and  of  no  force,  and  that 
the  power  to  create,  define,  and  punish  such  other  crimes 
is  reserved,  and  of  right  appertains,  solely  and  ex- 
clusively, to  the  respective  States,  each  within  its  own 
territory. 

7.  Resolved,  That  the  construction  applied  by  the  Gen- 
eral Government  (as  is  evinced  by  sundry  of  their  pro- 
ceedings), to  those  parts  of  the  Constitution  of  the  United 
States  which  delegates  to  Congress  a  power  to  lay  and 
collect  taxes,  duties,  imposts,  and  excises ;  to  pay  the 
debts,  and  provide  for  the  common  defence  and  general 


328  Story  of  the  Constitution 

welfare  of  the  United  States,  and  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution 
the  powers  vested  by  the  Constitution  in  the  Government 
of  the  United  States,  or  any  department  thereof,  goes 
to  the  destruction  of  all  the  limits  prescribed  to  their 
power  by  the  Constitution :  that  words  meant  by  that 
instrument  to  be  subsidiary  only  to  the  execution  of  the 
limited  powers,  ought  not  to  be  so  construed  as  them- 
selves to  give  unlimited  powers,  nor  a  part  so  to  be 
taken,  as  to  destroy  the  whole  residue  of  the  instrument ; 
that  the  proceedings  of  the  General  Government,  under 
color  of  these  articles,  will  be  a  fit  and  necessary  sub- 
ject for  revisal  and  correction  at  a  time  of  greater  tran- 
quillity, while  those  specified  in  the  preceding  resolutions 
call  for  immediate  redress. 

8.  Resolved,  That  the  preceding  resolutions  be  trans- 
mitted to  the  Senators  and  Representatives  in  Congress 
from  this  commonwealth,  who  are  hereby  enjoined  to 
present  the  same  to  their  respective  houses,  and  to  use 
their  best  endeavors  to  procure,  at  the  next  session  of 
Congress,  a  repeal  of  the  aforesaid  unconstitutional  and 
obnoxious  acts. 

9.  Resolved  lastly,  That  the  Governor  of  this  common- 
wealth be,  and  is  hereby  authorized  and  requested  to 
communicate  the  preceding  resolutions  to  the  legislatures 
of  the  several  States,  to  assure  them  that  this  common- 
wealth considers  union  for  specified  national  purposes, 
and  particularly  for  those  specified  in  their  late  Federal 
compact,  to  be  friendly  to  the  peace,  happiness,  and 
prosperity  of  all  the  States;  that,  faithful  to  that  com- 
pact, according  to  the  plain  intent  and  meaning  in  which 
it  was  understood  and  acceded  to  by  the  several  parties, 
it  is  sincerely  anxious  for  its  preservation ;  that  it  does 
also  believe,  that  to  take  from  the  States  all  the  powers 
of  self-government,  and  transfer  them  to  a  general  and 
consolidated  government,  without  regard  to  the  special 


Kentucky  Resolutions  of  1798        329 

obligations  and  reservations  solemnly  agreed  to  in  that 
compact,  is  not  for  the  peace,  happiness,  or  prosperity 
of  these  States;  and  that,  therefore,  this  commonwealth 
is  determined,  as  it  doubts  not  its  co-States  are,  tamely 
to  submit  to  undelegated  and  consequently  unlimited 
powers  in  no  man  or  body  of  men  on  earth ;  that  if  the 
acts  before  specified  should  stand,  these  conclusions 
would  flow  from  them :  that  the  General  Government  may 
place  any  act  they  think  proper  on  the  list  of  crimes, 
and  punish  it  themselves,  whether  enumerated  or  not 
enumerated  by  the  Constitution,  as  cognizable  by  them; 
that  they  may  transfer  its  cognizance  to  the  President 
or  to  any  other  person,  who  may  himself  be  the  accuser, 
counsel,  judge,  and  jury,  whose  suspicions  may  be  the 
evidence,  his  order  the  sentence,  his  officer  the  execu- 
tionerj  and  his  breast  the  sole  record  of  the  transaction ; 
that  a  very  numerous  and  valuable  description  of  the 
inhabitants  of  these  States  being,  by  this  precedent,  re- 
duced as  outlaws  to  the  absolute  dominion  of  one  man, 
and  the  barrier  of  the  Constitution  thus  swept  away  from 
us  all,  no  rampart  now  remains  against  the  passions 
and  the  powers  of  a  majority  of  Congress,  to  protect  from 
a  like  exportation  or  other  more  grievous  punishment  the 
minority  of  the  same  body,  the  legislatures,  judges,  gov- 
ernors, and  counsellors  of  the  States,  nor  their  other 
peaceable  inhabitants  who  may  venture  to  reclaim  the 
constitutional  rights  and  liberties  of  the  States  and 
people,  or  who,  for  other  causes,  good  or  bad,  may  be 
obnoxious  to  the  views,  or  marked  by  the  suspicions  of 
the  President,  or  be  thought  dangerous  to  his  or  their  elec- 
tions, or  other  interests  public  or  personal;  that  the 
friendless  alien  has  indeed  been  selected  as  the  safest 
subject  of  a  first  experiment;  but  the  citizen  will  soon 
follow,  or  rather  has  already  followed ;  for,  already  has 
a  sedition  act  marked  him  as  its  prey:  that  these  and 
successive  acts  of   the   same   character,   unless   arrested 


33°  Story  of  the  Constitution 

on  the  threshold,  may  tend  to  drive  these  States  into 
revolution  and  blood,  and  will  furnish  new  calumnies 
against  republican  governments,  and  new  pretexts  for 
those  who  wish  it  to  be  believed  that  man  cannot  be 
governed  but  by  a  rod  of  iron ;  that  it  would  be  a  dan- 
gerous delusion  were  a  confidence  in  the  men  of  our 
choice  to  silence  our  fears  for  the  safety  of  our  rights; 
that  confidence  is  everywhere  the  parent  of  despotism; 
free  government  is  founded  in  jealousy,  and  not  in  con- 
fidence; it  is  jealousy  and  not  confidence  which  prescribes 
limited  constitutions  to  bind  down  those  whom  we  are 
obliged  to  trust  with  power;  that  our  Constitution  has 
accordingly  fixed  the  limits  to  which  and  no  further  our 
confidence  may  go;  and  let  the  honest  advocate  of  con- 
fidence read  the  alien  and  sedition  acts,  and  say  if  the 
Constitution  has  not  been  wise  in  fixing  limits  to  the 
government  it  created,  and  whether  we  should  be  wise 
in  destroying  those  limits.  Let  him  say  what  the  gov- 
ernment is  if  it  be  not  a  tyranny,  which  the  men  of  our 
choice  have  conferred  on  the  President,  and  the  President 
of  our  choice  has  consented  to  and  accepted,  over  the 
friendly  strangers,  to  whom  the  mild  spirit  of  our  coun- 
try and  its  laws  had  pledged  hospitality  and  protection ; 
that  the  men  of  our  choice  have  more  respected  the  bare 
suspicions  of  the  President,  than  the  solid  rights  of 
innocence,  the  claims  of  justification,  the  sacred  force  of 
truth,  and  the  forms  and  substance  of  law  and  justice. 
In  questions  of  power,  then,  let  no  more  be  heard  of 
confidence  in  man,  but  bind  him  down  from  mischief, 
by  the  chains  of  the  Constitution.  That  this  common- 
wealth does,  therefore,  call  on  its  co-States  for  an  ex- 
pression of  their  sentiments  on  the  acts  concerning 
aliens,  and  for  the  punishment  of  certain  crimes  herein- 
before specified,  plainly  declaring  whether  these  acts  are  or 
are  not  authorized  by  the  Federal  compact.  And  it  doubts 
not  that  their  sense  will  be  so  announced,  as  to  prove 


Kentucky  Resolutions  of  1798        331 

their  attachment  unaltered  to  limited  government, 
whether  general  or  particular,  and  that  the  rights  and 
liberties  of  their  co-States  will  be  exposed  to  no  dangers 
by  remaining  embarked  on  a  common  bottom  with  their 
own;  that  they  will  concur  with  this  commonwealth 
in  considering  the  said  acts  as  so  palpably  against  the 
Constitution,  as  to  amount  to  an  undisguised  declara- 
tion, that  the  compact  is  not  meant  to  be  the  measure 
of  the  powers  of  the  General  Government,  but  that  it 
will  proceed  in  the  exercise  over  these  States  of  all 
powers  whatsoever;  that  they  will  view  this  as  seizing 
the  rights  of  the  States,  and  consolidating  them  in  the 
hands  of  the  General  Government  with  a  power  assumed 
to  bind  the  States  (not  merely  in  cases  made  federal), 
but  in  all  cases  whatsoever,  by  laws  made,  not  with  their 
consent,  but  by  others  against  their  consent;  that  this 
would  be  to  surrender  the  form  of  government  we  have 
chosen,  and  to  live  under  one  deriving  its  powers  from 
its  own  will,  and  not  from  our  authority ;  and  that  the 
co-States,  recurring  to  their  natural  right  in  cases  not 
made  federal,  will  concur  in  declaring  these  acts  void 
and  of  no  force,  and  will  each  unite  with  this  common- 
wealth, in  requesting  their  repeal  at  the  next  session  of 
Congress. 


yiRGINIA  RESOLUTIONS  OF  1798 

1.  Resolved,  That  the  General  Assembly  of  Virginia 
doth  unequivocally  express  a  firm  resolution  to  main- 
tain and  defend  the  Constitution  of  the  United  States, 
and  the  Constitution  of  this  State,  against  every  aggres- 
sion, either  foreign  or  domestic,  and  that  it  will  support 
the  Government  of  the  United  States  in  all  measures 
warranted  by  the  former. 

2.  That  this  Assembly  most  solemnly  declares  a  warm 
attachment  to  the  union  of  the  States,  to  maintain  which, 
it  pledges  all  its  powers;  and  that  for  this  end  it  is  its 
duty  to  watch  over  and  oppose  every  infraction  of  those 
principles,  which  constitute  the  only  basis  of  that  union, 
because  a  faithful  observance  of  them  can  alone  secure 
its  existence  and  the  public  happiness. 

3.  That  this  Assembly  doth  explicitly  and  peremp- 
torily declare  that  it  views  the  powers  of  the  Federal 
Government  as  resulting  from  the  compact,  to  which  the 
States  are  parties,  as  limited  by  the  plain  sense  and 
intention  of  the  instrument  constituting  that  compact; 
as  no  further  valid  than  they  are  authorized  by  the 
grants  enumerated  in  that  contract;  and  that  in  case 
of  a  deliberate,  palpable,  and  dangerous  exercise  of  other 
powers  not  granted  by  the  said  compact,  the  States,  who 
are  the  parties  thereto,  have  the  right,  and  are  in  duty 
bound,  to  interpose  for  arresting  the  progress  of  the 
evil,  and  for  maintaining,  within  their  respective  limits, 
the  authorities,  rights,  and  liberties  api^ertaining  to  them. 

332 


Virginia  Resolutions  of  1798         333 

4.  That  the  General  Assembly  doth  also  express  its 
deep  regret  that  a  spirit  has  in  sundry  instances  been 
manifested  by  the  Federal  Government,  to  enlarge  its 
powers  by  forced  constructions  of  the  constitutional 
charter  which  defines  them;  and  that  indications  have 
appeared  of  a  design  to  expound  certain  general  phrases 
(which,  having  been  copied  from  the  very  limited  grant 
of  powers  in  the  former  articles  of  confederation,  were 
the  less  liable  to  be  misconstrued),  so  as  to  destroy  the 
meaning  and  effect  of  the  particular  enumeration,  which 
necessarily  explains  and  limits  the  general  phrases,  and 
so  as  to  consolidate  the  States  by  degrees  into  one  sov- 
ereignty, the  obvious  tendency  and  inevitable  result  of 
which  would  be  to  transform  the  present  republican  sys- 
tem of  the  United  States  into  an  absolute,  or  at  best,  a 
mixed  monarchy. 

5.  That  the  General  Assembly  doth  particularly  pro- 
test against  the  palpable  and  alarming  infractions  of 
the  Constitution,  in  the  two  late  cases  of  the  "  alien  and 
sedition  acts,"  passed  at  the  last  session  of  Congress: 
the  first  of  which  exercises  a  power  nowhere  delegated 
to  the  Federal  Government,  and  which,  by  uniting  legis- 
lative and  judicial  powers  to  those  of  executive,  subverts 
the  general  principles  of  free  government,  as  well  as  the 
particular  organization  and  positive  provisions  of  the 
Federal  Constitution;  and  the  other  of  which  acts  ex- 
ercises in  like  manner  a  power  not  delegated  by  the 
Constitution,  but  on  the  contrary  expressly  and  posi- 
tively forbidden  by  one  of  the  amendments  thereto;  a 
power  which  more  than  any  other  ought  to  produce  uni- 
versal alarm,  because  it  is  levelled  against  the  right  of 
freely  examining  public  characters  and  measures,  and 
of  free  communication  among  the  people  thereon,  which 
has  ever  been  justly  deemed  the  only  effectual  guardian 
of  every  other  right. 

f).     That   this   State  having  by  its  convention,  which 


334  Story  of  the  Constitution 

ratified  the  Federal  Constitution,  expressly  declared, 
"  that  among  other  essential  rights,  the  liberty  of  con- 
science and  of  the  press  cannot  be  cancelled,  abridged, 
restrained,  or  modified  by  any  authority  of  the  United 
States,"  and  from  its  extreme  anxiety  to  guard  these 
rights  from  every  possible  attack  of  sophistry  or  am- 
bition, having  with  other  States  recommended  an  amend- 
ment for  that  purpose,  which  amendment  was  in  due 
time  annexed  to  the  Constitution,  it  would  mark  a  re- 
proachful inconsistency  and  criminal  degeneracy,  if  an 
indifference  were  now  shown  to  the  most  palpable  viola- 
tion of  one  of  the  rights  thus  declared  and  secured,  and 
to  the  establishment  of  a  precedent  which  may  be  fatal 
to  the  other. 

7.  That  the  good  people  of  this  commonwealth  having 
ever  felt,  and  continuing  to  feel  the  most  sincere  affection 
to  their  brethren  of  the  other  States,  the  truest  anxiety 
for  establishing  and  perpetuating  the  union  of  all,  and 
the  most  scrupulous  fidelity  to  that  Constitution  which 
is  the  pledge  of  mutual  friendship,  and  the  instrument 
of  mutual  happiness,  the  General  Assembly  doth  solemnly 
appeal  to  the  like  dispositions  of  the  other  States,  in 
confidence  that  they  will  concur  with  this  commonwealth 
in  declaring,  as  it  does  hereby  declare,  that  the  acts 
aforesaid  are  unconstitutional,  and  that  the  necessary 
and  proper  measure  will  be  taken  by  each,  for  co- 
operating with  this  State  in  maintaining  unimpaired  the 
authorities,  rights,  and  liberties  reserved  to  the  States 
respectively,  or  to  the  people. 

8.  That  the  Governor  be  desired  to  transmit  a  copy 
of  the  aforesaid  resolutions  to  the  executive  authority 
of  each  of  the  other  States,  with  a  request  that  the  same 
may  be  communicated  to  the  Legislature  thereof.  And 
that  a  copy  be  furnished  to  each  of  the  Senators  and 
Representatives  representing  this  State  in  the  Congress 
of  the  United  States. 


ABSTRACT   OF   DECISION    IN   THE   CASE   OF 
MARBURY  VS.  MADISON,  1803 

The  question  whether  an  act  repugnant  to  the  Consti- 
tution can  become  a  law  of  the  land,  is  a  question  deeply 
interesting  to  the  United  States;  but  happily  not  of  an 
intricacy  proportionate  to  its  interest.  It  seems  only 
necessary  to  recognize  certain  principles  supposed  to 
have  been  long  and  well  established,  to  decide  it.  .  .  . 
That  the  people  have  an  original  right  to  establish  for 
their  future  government  such  principles  as  in  their  opin- 
ion shall  most  conduce  to  their  own  happiness,  is  the 
basis  on  which  the  whole  American  fabric  has  been 
erected.  The  original  supreme  will  organizes  the  gov- 
ernment and  assigns  to  the  different  departments  their 
respective  powers.  .  .  .  The  powers  of  the  Legislature 
are  defined  and  limited;  and  that  those  limits  may  not 
be  mistaken  or  forgotten,  the  Constitution  is  written. 
To  what  purpose  are  powers  limited  and  to  what  pur- 
pose is  that  limitation  committed  to  writing,  if  those 
limits  may  at  any  time  be  passed  by  those  intended  to 
be  restrained?  .  .  .  The  Constitution  is  either  a  superior, 
paramount  law,  unchangeable  by  ordinary  means,  or  it 
is  on  a  level  with  ordinary  legislative  acts,  and  like  any 
other  act  is  alterable  when  the  Legislature  shall  please 
to  alter  it.  If  the  former  part  of  the  alternative  be 
true,  then  a  legislative  act  contrary  to  the  Constitution 
is  not  law.  If  the  latter  part  be  true,  then  written  con- 
stitutions are  absurd  attempts  on  the  part  of  the  people 

335 


33^  Story  of  the  Constitution 

to  limit  a  power  in  its  own  nature  illimitable.  ...  If 
an  act  of  the  Legislature  repugnant  to  the  Constitution 
is  void,  does  it,  notwithstanding  its  invalidity,  bind  the 
courts  and  oblige  them  to  give  it  effect?  Or,  in  other 
words,  though  it  be  not  law,  does  it  constitute  a  rule  as 
operative  as  though  it  was  a  law?  This  would  be  to 
overthrow  in  fact  what  was  established  in  theory;  and 
would  seem  at  first  view  an  absurdity  too  gross  to  be 
insisted  upon.  It  shall,  however,  receive  a  more  attentive 
consideration.  It  is  emphatically  the  province  and  duty 
of  the  judicial  department  to  say  what  the  law  is.  Those 
who  apply  the  rule  to  particular  cases  must  of  neces- 
sity expound  and  interpret  that  rule.  If  two  laws  con- 
flict with  each  other,  the  courts  must  decide  upon  the 
operation  of  each.  So  if  a  law  be  in  opposition  to  the 
Constitution;  if  both  the  law  and  the  Constitution  ap- 
ply to  a  particular  case,  so  that  the  court  must  either 
decide  that  case  conformably  to  the  law,  disregarding 
the  Constitution,  or  conformably  to  the  Constitution, 
disregarding  the  law — the  court  must  determine  which 
of  these  conflicting  rules  governs  the  case.  This  is  of 
the  very  essence  of  judicial  duty.  If,  then,  the  courts 
are  to  regard  the  Constitution,  and  the  Constitution  is 
superior  to  any  ordinary  act  of  the  Legislature,  the 
Constitution,  and  not  such  ordinary  act,  must  govern  the 
case  to  which  they  both  a^jply.  Those,  then,  who  con- 
trovert the  principle  that  the  Constitution  is  to  be  con- 
sidered in  court  as  a  paramount  law,  are  reduced  to 
the  necessity  of  maintaining  that  courts  must  close  their 
eyes  on  the  Constitution  and  see  only  the  law. 


AMENDMENTS     TO     THE     CONSTITUTION     PRO- 
POSED BY  THE  HARTFORD  CONVENTION, 
1814 

Therefore  Resolved — That  it  be  and  hereby  is  recom- 
mended to  the  Legislatures  of  the  several  States  repre- 
sented in  this  Convention,  to  adopt  all  such  measures  as 
may  be  necessary  effectually  to  protect  the  citizens  of  said 
States  from  the  operation  and  effects  of  all  acts  which 
have  been  or  may  be  passed  by  the  Congress  of  the 
United  States,  which  shall  contain  provisions,  subject- 
ing the  militia  or  other  citizens  to  forcible  drafts,  con- 
scriptions, or  impressments,  not  authorized  by  the 
Constitution  of  the  United  States. 

Resolved — That  it  be  and  hereby  is  recommended  to 
the  said  Legislatures,  to  authorize  an  immediate  and 
earnest  application  to  be  made  to  the  Government  of 
the  United  States,  requesting  their  consent  to  some  ar- 
rangement, whereby  the  said  States  may,  separately  or 
in  concert,  be  empowered  to  assume  upon  themselves 
the  defence  of  their  territory  against  the  enemy;  and 
a  reasonable  portion  of  the  taxes,  collected  within  said 
States,  may  be  paid  into  the  respective  treasuries  thereof, 
and  appropriated  to  the  payment  of  the  balance  due 
said  States,  and  to  the  future  defence  of  the  same.  The 
amount  so  paid  into  the  said  treasuries  to  be  credited, 
and  the  disbursements  made  as  aforesaid  to  be  charged 
to  the  United  States. 

Resolved — That  it  be,  and  it  hereby  is,  recommended 
82  337 


33^  Story  of  the  Constitution 

to  the  Legislatures  of  the  aforesaid  States,  to  pass  laws 
(where  it  has  not  already  been  done)  authorizing  the 
Governors  or  Commanders-in-Chief  of  their  militia  to 
make  detachments  from  the  same,  or  to  form  voluntary 
corps,  as  shall  be  most  convenient  and  conformable  to 
their  Constitutions,  and  to  cause  the  same  to  be  well 
armed,  equipped,  and  disciplined,  and  held  in  readiness 
for  service;  and  upon  the  request  of  the  Governor  of 
either  of  the  other  States,  to  employ  the  whole  of  such 
detachment  or  corps,  as  well  as  the  regular  forces  of  the 
State,  or  such  part  thereof  as  may  be  required  and  can 
be  spared  consistently  with  the  safety  of  the  State,  in 
assisting  the  State  making  such  request,  to  repel  any 
invasion  thereof  which  shall  be  made  or  attempted  by 
the  public  enemy. 

Resolved — That  the  following  amendments  of  the  Con- 
stitution of  the  United  States  be  recommended  to  the 
States  as  aforesaid,  to  be  proposed  by  them  for  adoption 
by  the  State  Legislatures,  and,  in  such  cases  as  may  be 
deemed  expedient,  by  a  Convention  chosen  by  the  people 
of  each  State. 

And  it  is  further  recommended,  that  the  said  States 
shall  persevere  in  their  efforts  to  obtain  such  amend- 
ments, until  the  same  shall  be  effected. 

First — Representatives  and  direct  taxes  shall  be  ap- 
portioned among  the  several  States  which  may  be  in- 
cluded within  this  Union,  according  to  their  respective 
numbers  of  free  persons,  including  those  bound  to  serve 
for  a  term  of  years,  and  excluding  Indians  not  taxed, 
and  all  other  persons. 

Second — No  new  State  shall  be  admitted  into  the  Union 
by  Congress  in  virtue  of  the  power  granted  by  the 
Constitution,  without  the  concurrence  of  two  thirds  of 
both  Houses. 

Third — Congress  shall  not  have  power  to  lay  any  em- 
bargo   on   the    ships   or  vessels    of   the   citizens   of   the 


Hartford  Convention  339 

United  States,  in  the  ports  or  harbors  thereof,  for  more 
than  sixty  days. 

Fourth — Congress  shall  not  have  power,  without  the 
concurrence  of  two  thirds  of  both  Houses,  to  intei'dict 
the  commercial  intercourse  between  the  United  States 
and  any  foreign  nation  or  the  dependencies  thereof. 

Fifth — Congress  shall  not  make  or  declare  war,  or 
authorize  acts  of  hostility  against  any  foreign  nation, 
without  the  concurrence  of  two  thirds  of  both  Houses, 
except  such  acts  of  hostility  be  in  defence  of  the  terri- 
tories of  the  United  States  when  actually  invaded. 

Sixth — No  person  who  shall  hereafter  be  naturalized, 
shall  be  eligible  as  a  member  of  the  Senate  or  House  of 
Representatives  of  the  United  States,  nor  capable  of 
holding  any  civil  office  under  the  authority  of  the  United 
States. 

Seventh — The  same  person  shall  not  be  elected  Presi- 
dent of  the  United  States  a  second  time;  nor  shall  the 
President  be  elected  from  the  same  State  two  terms  in 
succession. 

Resolved — That  if  the  application  of  these  States  to 
the  Government  of  the  United  States,  recommended  in 
a  foregoing  Resolution,  should  be  unsuccessful,  and  peace 
should  not  be  concluded,  and  the  defence  of  these  States 
should  be  neglected,  as  it  has  been  since  the  commence- 
ment of  the  war,  it  will  in  the  opinion  of  this  Conven- 
tion be  expedient  for  the  Legislatures  of  the  several 
States  to  appoint  Delegates  to  another  Convention,  to 
meet  at  Boston,  in  the  State  of  Massachusetts,  on  the 
third  Thursday  of  June  next,  with  such  powers  and  in- 
structions as  the  exigency  of  a  crisis  so  momentous  may 
require. 


SOUTH   CAKOLINA   ORDINANCE    OF    NULLIFICA- 
TION, 1832 

An  ordinance  to  nullify  certain  acts  of  the  Congress  of 
the  United  States,  purporting  to  be  laws  laying 
duties  and  imposts  on  the  importation  of  foreign 
commodities. 
Whereas  the  Congress  of  the  United  States  by  various 
acts,  purporting  to  be  acts  laying  duties  and  imposts 
on  foreign  imports,  but  in  reality  intended  for  the  pro- 
tection of  domestic  manufactures,  and  the  giving  of 
bounties  to  classes  and  individuals  engaged  in  particular 
employments,  at  the  expense  and  to  the  injury  and  op- 
pression of  other  classes  and  individuals,  and  by  wholly 
exempting  from  taxation  certain  foreign  commodities, 
such  as  are  not  produced  or  manufactured  in  the  United 
States,  to  afford  a  pretext  for  imposing  higher  and  ex- 
cessive duties  on  articles  similar  to  those  intended  to 
be  protected,  hath  exceeded  its  just  powers  under  the 
Constitution,  which  confers  on  it  no  authority  to  afford 
such  protection,  and  hath  violated  the  true  meaning  and 
intent  of  the  Constitution,  which  provides  for  equality 
in  imposing  the  burdens  of  taxation  upon  the  several 
States  and  portions  of  the  confederacy:  And  whereas 
the  said  Congress,  exceeding  its  just  power  to  impose 
taxes  and  collect  revenue  for  the  purpose  of  effecting 
and  accomplishing  the  specific  objects  and  purposes 
which  the  Constitution  of  the  United  States  authorizes 
it   to  effect   and   accomplish,   hath   raised   and   collected 

340 


S.  C.  Ordinance  of  Nullification       341 

unnecessary  revenue  for  objects  uiiaulliorized  by  the 
Constitution. 

We,  therefore,  the  people  of  the  State  of  South  Carolina, 
in  convention  assembled,  do  declare  and  ordain  and  it 
is  hereby  declared  and  ordained,  that  the  several  acts 
and  parts  of  acts  of  the  Congress  of  the  United  States, 
purporting  to  be  laws  for  the  imposing  of  duties  and 
imposts  on  the  importation  of  foreign  commodities,  and 
now  having  actual  operation  and  effect  within  the 
United  States,  and  more  especially,  an  act  entitled  "  An 
act  in  alteration  of  the  several  acts  imposing  duties  on 
imports,"  approved  on  the  nineteenth  day  of  May,  one 
thousand  eight  hundred  and  twenty-eight,  and  also  an 
act  entitled  ''  An  act  to  alter  and  amend  the  several 
acts  imposing  duties  on  imports,"  approved  on  the  four- 
teenth day  of  July,  one  thousand  eight  hundred  and 
thirty-twOj  are  unauthorized  by  the  Constitution  of  the 
United  States,  and  violate  the  true  meaning  and  intent 
thereof  and  are  null,  void,  and  no  law,  nor  binding  upon 
this  State,  its  officers  or  citizens ;  and  all  })romises,  con- 
tracts, and  obligations,  made  or  entered  into,  or  to  be 
made  or  entered  into,  with  purpose  to  secure  the  duties 
imposed  by  said  acts,  and  all  judicial  proceedings  which 
shall  be  hereafter  had  in  affirmance  thereof,  are  and 
shall  be  held  utterly  null  and  void. 

And  it  is  further  ordained,  that  it  shall  not  be  lawful 
for  any  of  the  constituted  authorities,  whether  of  this 
State  or  of  the  Ignited  States,  to  enforce  the  payment 
of  duties  imposed  by  the  said  acts  within  the  limits  of 
this  State;  but  it  shall  be  the  duty  of  the  Legislature 
to  adopt  such  measures  and  pass  such  acts  as  may  be 
necessary  to  give  full  effect  to  this  .ordinance,  and  to 
prevent  the  enforcement  and  arrest  the  operation  of  the 
said  acts  and  parts  of  acts  of  the  Congress  of  the  United 
States  within  the  limits  of  this  State,  from  and  after 
the  first  day  of  February  next,  and  the  duties  of  all 


342  Story  of  the  Constitution 

other  constituted  authorities,  and  of  all  persons  residing 
or  being  within  the  limits  of  this  State,  and  they  are 
hereby  required  and  enjoined  to  obey  and  give  effect  to 
this  ordinance,  and  such  acts  and  measures  of  the  Legis- 
lature as  may  be  passed  or  adopted  in  obedience  thereto. 

And  it  is  further  ordained,  that  in  no  case  of  law  or 
equity,  decided  in  the  courts  of  this  State,  wherein  shall 
be  drawn  in  question  the  authority  of  this  ordinance,  or 
the  validity  of  such  act  or  acts  of  the  Legislature  as 
may  be  passed  for  the  purpose  of  giving  effect  thereto, 
or  the  validity  of  the  aforesaid  acts  of  Congress,  im- 
posing duties,  shall  any  appeal  be  taken  or  allowed  to 
the  Supreme  Court  of  the  United  States,  nor  shall  any 
copy  of  the  record  be  permitted  or  allowed  for  that 
purpose;  and  if  any  such  appeal  shall  be  attempted  to 
be  taken,  the  courts  of  this  State  shall  proceed  to  exe- 
cute and  enforce  their  judgments  according  to  the  laws 
and  usages  of  the  State,  without  reference  to  such  at- 
tempted appeal,  and  the  person  or  persons  attempting 
to  take  such  appeal  may  be  dealt  with  as  for  a  contempt 
of  the  court. 

And  it  is  further  ordained,  that  all  persons  now  hold- 
ing any  office  of  honor,  profit,  or  trust,  civil  or  mili- 
tary, under  this  State  (members  of  the  Legislature 
excepted),  shall,  within  such  timCj  and  in  such  manner 
as  the  Legislature  shall  prescribe,  take  an  oath  well 
and  truly  to  obey,  execute,  and  enforce  this  ordinance, 
and  such  act  or  acts  of  the  Legislature  as  may  be  passed 
in  pursuance  thereof,  according  to  the  true  intent  and 
meaning  of  the  same;  and  on  the  neglect  or  omission 
of  any  such  person  or  persons  so  to  do,  his  or  their 
office  or  offices  shall  be  forthwith  vacated,  and  shall  be 
filled  up  as  if  such  person  or  persons  were  dead  or  had 
resigned;  and  no  person  hereafter  elected  to  any  office 
of  honor,  profit,  or  trust,  civil  or  military  (members  of 
the   Legislature  excepted),   shall,   until   the    Legislature 


S.  C.  Ordinance  of  Nullification       343 

shall  otherwise  provide  and  direct,  enter  on  the  execution 
of  his  oflfice,  or  be  in  any  respect  competent  to  dis- 
charge the  duties  thereof  until  he  shall,  in  like  manner, 
have  taken  a  similar  oath;  and  no  juror  shall  be  im- 
panelled in  any  of  the  courts  of  this  State,  in  any  cause 
in  which  shall  be  in  question  this  ordinance,  or  any  act 
of  the  Legislature  passed  in  pursuance  thereof,  unless 
he  shall  first,  in  addition  to  the  usual  oath,  have  taken 
an  oath  that  he  will  well  and  truly  obey,  execute,  and 
enforce  this  ordinance,  and  such  act  or  acts  of  the  Legis- 
lature as  may  be  passed  to  carry  the  same  into  operation 
and  effect,  according  to  the  true  intent  and  meaning 
thereof. 

And  we,  the  people  of  South  Carolina,  to  the  end  that 
it  may  be  fully  understood  by  the  Government  of  the 
United  States,  and  the  people  of  the  co-States,  that  we 
are  determined  to  maintain  this  our  ordinance  and  dec- 
laration, at  every  hazard,  do  further  declare  that  we  will 
not  submit  to  the  application  of  force  on  the  part  of 
the  Federal  Government,  to  reduce  this  State  to  obedi- 
ence ;  but  that  we  will  consider  the  passage,  by  Congress, 
of  any  act  authorizing  the  employment  of  a  military  or 
naval  force  against  the  State  of  South  Carolina,  her 
constitutional  authorities  or  citizens ;  or  any  act  abolish- 
ing or  closing  the  ports  of  this  State,  or  any  of  them,  or 
otherwise  obstructing  the  free  ingress  and  egress  of 
vessels  to  and  from  the  said  ports,  or  any  other  act  on 
the  part  of  the  Federal  Government,  to  coerce  the  State, 
shut  up  her  ports,  destroy  or  harass  her  commerce  or 
to  enforce  the  acts  hereby  declared  to  be  null  and  void, 
otherwise  than  through  the  civil  tribunals  of  the  coun- 
try, as  inconsistent  with  the  longer  continuance  of  South 
Carolina  in  the  Union;  and  that  the  people  of  this  State 
will  henceforth  hold  themselves  absolved  from  all  further 
obligation  to  maintain  or  preserve  their  political  con- 
nection with  the  people  of  the  other  States;   and  will 


344  Story  of  the  Constitution 

forthwith  proceed  to  organize  a  separate  government, 
and  do  all  other  acts  and  things  which  sovereign  and 
independent  States  may  of  right  do. 

Done  in  convention  at  Columbia,  the  twenty-fourth 
day  of  November,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  thirty-two,  and  in  the  fifty-seventh 
year  of  the  Declaration  of  the  Independence  of  the  United 
States  of  America. 


PRESIDENT  JACKSON'S   PROCLAMATION,  1832 

Whereas  a  convention,  assembled  in  the  State  of  South 
Carolina,  have  passed  an  ordinance,  by  which  they  de- 
clare "  that  the  several  acts  and  parts  of  acts  of  the  Con- 
gress of  the  United  States  purporting  to  be  laws  for  the 
imposing  of  duties  and  imposts  on  the  importation  of 
foreign  commodities,  and  now  having  actual  operation 
and  effect  within  the  United  States,  and  more  especially 
'  two  acts  for  the  same  purposes,  passed  on  the  29th  of 
May,  1828,  and  on  the  14th  of  July,  1832,'  are  un- 
authorized by  the  Constitution  of  the  United  States,  and 
violate  the  true  meaning  and  intent  thereof,  and  are  null 
and  void,  and  no  law,"  nor  binding  on  the  citizens  of 
that  State  or  its  officers;  and  by  the  said  ordinance  it 
is  further  declared  to  be  unlawful  for  any  of  the  con- 
stituted authorities  of  the  State,  or  of  the  United  States, 
to  enforce  the  payment  of  the  duties  imposed  by  the 
said  acts  within  the  same  State,  and  that  it  is  the  duty 
of  the  Legislature  to  pass  such  laws  as  may  be  neces- 
sary to  give  full  effect  to  the  said  ordinance : 

And  whereas,  by  the  said  ordinance  it  is  further  or- 
dained, that,  in  no  case  of  law  or  equity,  decided  in 
the  courts  of  said  State,  wherein  shall  be  drawn  in 
question  the  validity  of  the  said  ordinance,  or  of  the 
acts  of  the  Legislature  that  may  be  passed  to  give  it 
effect,  or  of  the  said  laws  of  the  United  States,  no 
appeal  shall  be  allowed  to  the  Supreme  Court  of  the 
United  States,  nor  shall  any  copy  of  the  record  be  per- 

345 


346  Story  of  the  Constitution 

mitted  or  allowed  for  that  purpose;  and  that  any  person 
attempting  to  take  such  appeal,  shall  be  punished  as  for 
a  contempt  of  court: 

And,  finally,  the  said  ordinance  declares  that  the 
lieople  of  South  Carolina  will  maintain  the  said  ordi- 
nance at  every  hazard;  and  that  they  will  consider  the 
passage  of  any  act  by  Congress  abolishing  or  closing 
the  ports  of  the  said  State,  or  otherwise  obstructing  the 
free  ingress  or  egress  of  vessels  to  and  from  the  said 
ports,  or  any  other  act  of  the  Federal  Government  to 
coerce  the  State,  shut  up  her  ports,  destroy  or  harass 
her  commerce,  or  to  enforce  the  said  acts  otherwise  than 
through  the  civil  tribunals  of  the  country,  as  incon- 
sistent with  the  longer  continuance  of  South  Carolina 
in  the  Union;  and  that  the  people  of  the  said  State 
will  thenceforth  hold  themselves  absolved  from  all 
further  obligation  to  maintain  or  preserve  their  political 
connection  with  the  people  of  the  other  States,  and  will 
forthwith  proceed  to  organize  a  separate  government, 
and  do  all  other  acts  and  things  which  sovereign  and 
independent  States  may  of  right  do : 

And  whereas  the  said  ordinance  prescribes  to  the 
I)eople  of  South  Carolina  a  course  of  conduct  in  direct 
violation  of  their  duty  as  citizens  of  the  United  States, 
contrary  to  the  laws  of  their  country,  subversive  of  its 
Constitution,  and  having  for  its  object  the  destruction 
of  the  Union — that  Union,  which,  coeval  with  our  po- 
litical existence,  led  our  fathers,  without  any  other  ties 
to  unite  them  than  those  of  patriotism  and  a  common 
cause,  through  the  sanguinary  struggle  to  a  glorious  in- 
dependence— that  sacred  Union,  hitherto  inviolate,  which, 
perfected  by  our  happy  Constitution,  has  brought  us,  by 
the  favor  of  Heaven,  to  a  state  of  prosperity  at  home, 
and  high  consideration  abroad,  rarely,  if  ever,  equalled  in 
the  history  of  nations;  to  preserve  this  bond  of  our  po- 
litical existence  from  destruction,  to  maintain  inviolate 


President  Jackson's  Proclamation      347 

this  state  of  uationa!  honor  and  prosiK'iity,  and  I0 
justify  the  confidence  my  fellow-citizens  have  reposed  in 
me,  I,  Andrew  Jackson,  President  of  the  United  States, 
have  thought  proper  to  issue  this  my  Proclamation, 
stating  my  views  of  the  Constitution  and  laws  applicable 
to  the  measures  adopted  by  the  Convention  of  South 
Carolina,  and  to  the  reasons  they  have  put  forth  to 
sustain  them,  declaring  the  course  which  duty  will  re- 
quire me  to  pursue,  and,  appealing  to  the  understanding 
and  patriotism  of  the  people,  warn  them  of  the  con- 
sequences that  must  inevitably  result  from  an  observance 
of  the  dictates  of  the  Convention. 

Strict  duty  would  require  of  me  nothing  more  than 
the  exercise  of  those  i)owers  with  which  I  am  now,  or 
may  hereafter  be,  invested,  for  preserving  the  Union, 
and  for  the  execution  of  the  laws.  But  the  imposing 
asjiect  which  opposition  has  assumed  in  this  case,  by 
clothing  itself  with  State  authority,  and  the  deep  in- 
terest which  the  people  of  the  United  States  must  all 
feel  in  preventing  a  resort  to  stronger  measures,  while 
there  is  a  hope  that  anything  will  be  yielded  to  reason- 
ing and  remonstrances,  perhaps  demand,  and  will  cer- 
tainly justify,  a  full  exposition  to  South  Carolina  and 
the  nation  of  the  views  I  entertain  of  this  important 
question,  as  well  as  a  distinct  enunciation  of  the  course 
which  my  sense  of  duty  will  require  me  to  pursue. 

The  ordinance  is  founded,  not  on  the  indefeasible  right 
of  resisting  acts  which  are  plainly  unconstitutional,  and 
too  oppressive  to  be  endured,  but  on  the  strange  position 
that  any  one  State  may  not  only  declare  an  act  of 
Congress  void,  but  prohibit  its  execution — that  they  may 
do  this  consistently  with  the  Constitution — that  the  true 
construction  of  that  instrument  permits  a  State  to  re- 
tain its  place  in  the  Union,  and  yet  be  bound  by  no 
other  of  its  laws  than  those  it  may  choose  to  consider 
as  constitutional.     It  is  true  they  add,   that  to  justify 


348  Story  of  the  Constitution 

this  abrogation  of  a  law,  it  must  be  palpably  contrary  to 
the  Constitution ;  but  it  is  evident,  that  to  give  the  right 
of  resisting  laws  of  that  description,  coupled  with  the 
uncontrolled  right  to  decide  what  laws  deserve  that  char- 
acter, is  to  give  the  power  of  resisting  all  laws.  For, 
as  by  the  theory,  there  is  no  appeal,  the  reasons  alleged 
by  the  State,  good  or  bad,  must  prevail.  If  it  should 
be  said  that  public  opinion  is  a  sufficient  check  against 
the  abuse  of  this  power,  it  may  be  asked  why  it  is  not 
deemed  a  sufficient  guard  against  the  passage  of  an  un- 
constitutional act  by  Congress.  There  is,  however,  a 
restraint  in  this  last  case,  which  makes  the  assumed 
power  of  a  State  more  indefensible,  and  which  does  not 
exist  in  the  other.  There  are  two  appeals  from  an  un- 
constitutional act  passed  by  Congress — one  to  the  judi- 
ciary, the  other  to  the  people  and  the  States.  There  is 
no  appeal  from  the  State  decision  in  theory;  and  the 
practical  illustration  shows  that  the  courts  are  closed 
against  an  application  to  review  it,  both  judges  and 
jurors  being  sworn  to  decide  in  its  favor.  But  reason- 
ing on  this  subject  is  superfluous,  when  our  social  com- 
pact in  express  terms  declares,  that  the  laws  of  the 
United  States,  its  Constitution,  and  treaties  made  under 
it,  are  the  supreme  law  of  the  land;  and  for  greater 
caution  adds,  "  that  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  Constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding,"  And  it 
may  be  asserted,  without  fear  of  refutation,  that  no 
federative  government  could  exist  without  a  similar  pro- 
vision. Look,  for  a  moment,  to  the  consequence.  If 
South  Carolina  considers  the  revenue  laws  unconstitu- 
tional, and  has  a  right  to  prevent  their  execution  in  the 
port  of  Charleston,  there  would  be  a  clear  constitutional 
objection  to  their  collection  in  every  other  port,  and 
no  revenue  could  be  collected  anywhere;  for  all  imposts 
must  be  equal.     It  is  no  answer  to  repeat  that  an  un- 


President  Jackson's  Proclamation      349 

constitutional  law  is  no  law,  so  lone;  as  tho  question  of 
its  legality  is  to  be  decided  by  the  Stale  itself;  for  every 
law  operating  injuriously  upon  any  local  interest  will 
be  i)erhaps  thought,  and  certainly  rejtresented,  as  un- 
constitutional, and,  as  has  been  shown,  there  is  no  ai)peal. 
If  this  doctrine  had  been  established  at  an  earlier 
day,  the  Union  would  have  been  dissolved  in  its  in- 
fancy. The  excise  law  in  Pennsylvania,  the  embargo 
and  non-intercourse  law  in  the  Eastern  States,  the  car- 
riage tax  in  Virginia,  were  all  deemed  unconstitutional, 
and  were  more  unequal  in  their  operation  than  any  of 
the  laws  now  complained  of;  but,  fortunately,  none  of 
those  States  discovered  that  they  had  the  right  now 
claimed  by  South  Carolina.  The  war  into  which  we  were 
forced,  to  support  the  dignity  of  the  nation  and  the 
rights  of  our  citizens,  might  have  ended  in  defeat  and 
disgrace,  instead  of  victory  and  honor,  if  the  States, 
who  supposed  it  a  ruinous  and  unconstitutional  measure, 
had  thought  they  possessed  the  right  of  nullifying  the 
act  by  which  it  was  declared,  and  denying  supplies  for 
its  prosecution.  Hardly  and  unequally  as  those  meas- 
ures bore  upon  several  members  of  the  Union,  to  the 
legislatures  of  none  did  this  efficient  and  peaceable 
remedy,  as  it  is  called,  suggest  itself.  The  discovery  of 
this  important  feature  in  our  Constitution  was  reserved 
to  the  present  day.  To  the  statesmen  of  South  Carolina 
belongs  the  invention,  and  upon  the  citizens  of  that  State 
will,  unfortunately,  fall  the  evils  of  reducing  it  to 
practice. 

•  •••••• 

I  consider,  then,  the  power  to  annul  a  law  of  the  United 
States,  assumed  by  one  State,  incompatible  with  the  ex- 
istence of  the  Union,  contradicted  expressly  'by  the  letter 
of  the  Constitution,  unantlwrized  by  its  spirit,  incon- 
sistent with  every  principle  on  which  it  was  fonnded,  and 
destructive  of  the  great  object  for  which  it  was  formed. 


350  Story  of  the  Constitution 


This  right  to  secede  is  deduced  from  the  nature  of 
the  Constitution,  which  they  say  is  a  compact  between 
sovereign  States,  who  have  preserved  their  whole  sov- 
ereignty, and  therefore  are  subject  to  no  superior;  that 
because  they  made  the  compact,  they  can  break  it  when 
in  their  opinion  it  has  been  departed  from  by  the  other 
States.  Fallacious  as  this  course  of  reasoning  is,  it  en- 
lists State  pride,  and  finds  advocates  in  the  honest  pre- 
judices of  those  who  have  not  studied  the  nature  of  our 
government  sufficiently  to  see  the  radical  error  on  which 
it  rests. 

The  people  of  the  United  States  formed  the  Constitu- 
tion, acting  through  the  State  legislatures,  in  making 
the  compact,  to  meet  and  discuss  its  provisions,  and  act- 
ing in  separate  conventions  when  they  ratified  those 
provisions ;  but  the  terms  used  in  its  construction  show 
it  to  be  a  government  in  which  the  people  of  all  the 
States  collectively  are  represented.  We  are  One  Peo- 
ple in  the  choice  of  the  President  and  Vice-President. 
Here  the  States  have  no  other  agency  than  to  direct  the 
mode  in  which  the  vote  shall  be  given.  The  candidates 
having  the  majority  of  all  the  votes  are  chosen.  The 
electors  of  a  majority  of  States  may  have  given  their 
votes  for  one  candidate,  and  yet  another  may  be  chosen. 
The  people,  then,  and  not  the  States,  are  represented 
in  the  executive  branch. 

The  Constitution  of  the  United  States,  then,  forms  a 
government,  not  a  league,  and  whether  it  be  formed  by 
compact  between  the  States,  or  in  any  other  manner,  its 
character  is  the  same.  It  is  a  government  in  which  all 
the  people  are  represented,  which  operates  directly  on 
the  people  individually,  not  upon  the  States;  they  re- 
tained all  the  power  they  did  not  grant.  But  each  State, 
having  expressly  parted  with  so  many  powers  as  to  con- 


President  Jackson's  Proclamation      351 

stitute  jointly  with  the  other  States  a  single  nation, 
cannot  from  that  period  possess  any  right  to  secede, 
because  such  secession  does  not  break  a  league,  but  de- 
stroys the  unity  of  a  nation,  and  any  injury  to  that 
unity  is  not  only  a  breach  which  would  result  from  the 
contravention  of  a  compact,  but  it  is  an  offence  against 
the  whole  Union.  To  say  that  any  State  may  at  pleas- 
ure secede  from  the  Union  is  to  say  that  the  United 
States  are  not  a  nation ;  because  it  would  be  a  solecism 
to  contend  that  any  part  of  a  nation  might  dissolve  its 
connection  with  the  other  parts,  to  their  injury  or  ruin, 
without  committing  any  offence.  Secession,  like  any 
other  revolutionary  act,  may  be  morally  justified  by  the 
extremity  of  oppression ;  but  to  call  it  a  constitutional 
right  is  confounding  the  meaning  of  terms,  and  can  only 
be  done  through  gross  error,  or  to  deceive  those  who  are 
willing  to  assert  a  right,  but  would  pause  before  they 
made  a  revolution,  or  incur  the  penalties  consequent 
upon  a  failure. 

Because  the  Union  was  formed  by  compact,  it  is  said 
the  parties  to  that  compact  may,  when  they  feel  them- 
selves aggrieved,  depart  from  it ;  but  it  is  precisely  be- 
cause it  is  a  compact  that  they  cannot.  A  compact  is 
an  agreement  or  binding  obligation.  It  may  by  its  terms 
have  a  sanction  or  penalty  for  its  breach,  or  it  may  not. 
If  it  contains  no  sanction,  it  may  be  broken  with  no 
other  consequence  than  moral  guilt;  if  it  have  a  sanc- 
tion, then  the  breach  incurs  the  designated  or  implied 
penalty.  A  league  between  independent  nations,  gen- 
erally, has  no  sanction  other  than  a  moral  one;  or  if  it 
should  contain  a  penalty,  as  there  is  no  common  su- 
perior, it  cannot  be  enforced.  A  government,  on  the 
contrary,  always  has  a  sanction,  expressed  or  implied ; 
and,  in  our  case,  it  is  both  necessarily  implied  and  ex- 
pressly given.  An  attempt  by  force  of  arms  to  destroy 
a    government    is    an    offence,    by    whatever    means    the 


352  Story  of  the  Constitution 

constitutional  compact  may  have  been  formed;  and  such 
government  has  the  right,  by  the  law  of  self-defence,  to 
pass  acts  for  punishing  the  ofifender,  unless  that  right 
is  modified,  restrained,  or  resumed  by  the  constitutional 
act.  In  our  system,  although  it  is  modified  in  the  case 
of  treason,  yet  authority  is  expressly  given  to  pass  all 
laws  necessary  to  carry  its  powers  into  efifect,  and  under 
this  grant  provision  has  been  made  for  punishing  acts 
which  obstruct  the  due  administration  of  the  laws. 

It  would  seem  superfluous  to  add  anything  to  show 
the  nature  of  that  union  which  connects  us;  but  as 
erroneous  opinions  on  this  subject  are  the  foundation 
of  doctrines  the  most  destructive  to  our  peace,  I  must 
give  some  further  development  to  my  views  on  this  sub- 
ject. No  one,  fellow-citizens,  has  a  higher  reverence  for 
the  reserved  rights  of  the  States  than  the  magistrate  who 
now  addresses  you.  No  one  would  make  greater  per- 
sonal sacrifices,  or  official  exertions,  to  defend  them  from 
violation ;  but  equal  care  must  be  taken  to  prevent,  on 
their  part,  an  improper  interference  with,  or  resumption 
of,  the  rights  they  have  vested  in  the  nation.  The  line 
has  been  so  distinctly  drawn  as  to  avoid  doubts  in  some 
cases  of  the  exercise  of  power.  Men  of  the  best  inten- 
tions and  soundest  views  may  differ  in  their  construction 
of  some  parts  of  the  Constitution ;  but  there  are  others  on 
which  dispassionate  reflection  can  leave  no  doubt.  Of 
this  nature  appears  to  be  the  assumed  right  of  secession. 
It  rests,  as  we  have  seen,  on  the  alleged  undivided  sov- 
ereignty of  the  States,  and  on  their  having  formed  in 
this  sovereign  capacity  a  compact  which  is  called  the 
Constitution,  from  which,  because  they  made  it,  they 
have  the  right  to  secede.  Both  of  these  positions  are 
erroneous,  and  some  of  the  arguments  to  prove  them  so 
have  been  anticipated. 

The  States  severally  have  not  retained  their  entire 
sovereignty.     It  has  been  shown  that  in  becoming  parts 


President  Jackson's  Proclamation      353 

of  a  nation,  not  members  of  a  league,  they  surrendered 
many  of  their  essential  parts  of  sovereignty.  The  right 
to  make  treaties,  declare  war,  levy  taxes,  exercise  ex- 
clusive judicial  and  legislative  powers,  were  all  functions 
of  sovereign  power.  The  States,  then,  for  all  these  im- 
portant purposes,  were  no  longer  sovereign.  The  alle- 
giance of  their  citizens  was  transferred  in  the  first 
instance  to  the  Government  of  the  United  States;  they 
became  American  citizens,  and  owed  obedience  to  the 
Constitution  of  the  United  States,  and  to  laws  made  in 
conformity  with  the  powers  vested  in  Congress.  This 
last  position  has  not  been,  and  cannot  be,  denied.  How, 
then,  can  that  State  be  said  to  be  sovereign  and  inde- 
pendent whose  citizens  owe  obedience  to  laws  not  made 
by  it,  and  whose  magistrates  are  sworn  to  disregard 
those  laws,  when  they  come  in  conflict  with  those  passed 
by  another?  What  shows  conclusively  that  the  States 
cannot  be  said  to  have  reserved  an  undivided  sovereignty, 
is  that  they  expressly  ceded  the  right  to  punish  treason 
— not  treason  against  their  separate  power,  but  treason 
against  the  United  States.  Treason  is  an  offence  against 
sovereignty,  and  sovereignty  must  reside  with  the  power 
to  punish  it.  But  the  reserved  rights  of  the  States  are 
not  less  sacred  because  they  have  for  their  common  in- 
terest made  the  general  government  the  depository  of 
these  powers.  The  unity  of  our  political  character  (as 
has  been  shown  for  another  purpose)  commenced  with 
its  very  existence.  Under  the  royal  government  we  had 
no  separate  character;  our  opposition  to  its  oppression 
began  as  United  Colonies.  We  were  the  United 
States  under  the  Confederation,  and  the  name  was 
perpetuated  and  the  Union  rendered  more  perfect  by 
the  Federal  Constitution.  In  none  of  these  stages  did 
we  consider  ourselves  in  any  other  light  than  as  form- 
ing one  nation.  Treaties  and  alliances  were  made  in 
the  name  of  all.  Troops  were  raised  for  the  joint  de- 
23  


354  Story  of  the  Constitution 

fence.  How,  then,  with  all  these  proofs,  that  under  all 
changes  of  our  position  we  had,  for  designated  purposes 
and  with  defined  powers,  created  national  governments 
— how  is  it  that  the  most  perfect  of  these  several  modes 
of  union  should  now  be  considered  as  a  mere  league  that 
may  be  dissolved  at  pleasure?  It  is  from  an  abuse  of 
terms.  Compact  is  used  as  synonymous  with  league, 
although  the  true  term  is  not  employed,  because  it  would 
at  once  show  the  fallacy  of  the  reasoning.  It  would  not 
do  to  say  that  our  Constitution  was  only  a  league,  but 
it  is  labored  to  prove  it  a  compact  (which,  in  one  sense, 
it  is),  and  then  to  argue  that  as  a  league  is  a  compact, 
every  compact  between  nations  must,  of  course,  be  a 
league,  and  that  from  such  an  engagement  every  sov- 
ereign power  has  a  right  to  recede.  But  it  has  been 
shown  that  in  this  sense  the  States  are  not  sovereign, 
and  that  even  if  they  were,  and  the  national  Constitu- 
tion had  been  formed  by  compact,  there  would  be  no 
right  in  any  one  State  to  exonerate  itself  from  the 
obligation. 

So  obvious  are  the  reasons  which  forbid  this  seces- 
sion, that  it  is  necessary  only  to  allude  to  them.  The 
Union  was  formed  for  the  benefit  of  all.  It  was  pro- 
duced by  mutual  sacrifice  of  interest  and  opinions.  Can 
those  sacrifices  be  recalled?  Can  the  States,  who  mag- 
nanimously surrendered  their  title  to  the  territories  of 
the  West,  recall  the  grant?  Will  the  inhabitants  of  the 
inland  States  agree  to  pay  the  duties  that  may  be  im- 
posed without  their  assent  by  those  on  the  Atlantic  or 
the  Gulf,  for  their  own  benefit?  Shall  there  be  a  free 
port  in  one  State,  and  enormous  duties  in  another?  No 
one  believes  that  any  right  exists  in  a  single  State  to 
involve  all  the  others  in  these  and  countless  other  evils, 
contrary  to  engagements  solemnly  made.  Every  one  must 
see  that  the  other  States,  in  self-defence,  must  oppose 
it  at  all  hazards. 


President  Jackson's  Proclamation       355 


Fellow-citizens  of  my  native  State!  let  me  not  only 
admonish  you,  as  the  first  magistrate  of  our  common 
country,  not  to  incur  the  penalty  of  its  laws,  but  use 
the  influence  that  a  father  would  over  his  children  whom 
he  saw  rushing  to  a  certain  ruin.  In  that  paternal  lan- 
guage, with  that  paternal  feeling,  let  me  tell  you,  my 
countrymen,  that  you  are  deluded  by  men  who  are  either 
deceived  themselves  or  wish  to  deceive  you.  Mark  under 
what  pretences  you  have  been  led  on  to  the  brink  of 
insurrection  and  treason  on  which  you  standi  First,  a 
diminution  of  the  value  of  our  staple  commodity,  low- 
ered by  over-production  in  other  quarters,  and  the  con- 
sequent diminution  in  value  of  your  lands  were  the 
sole  effect  of  the  tariff  laws.  The  effect  of  those  laws 
was  confessedly  injurious,  but  the  evil  was  greatly  ex- 
aggerated by  the  unfounded  theory  you  were  taught  to 
believe,  that  its  burdens  were  in  proportion  to  your 
exports,  not  to  your  consumption  of  imported  articles. 
Your  pride  was  aroused  by  the  assertion  that  a  sub- 
mission to  these  laws  was  a  state  of  vassalage,  and  that 
resistance  to  them  was  equal,  in  patriotic  merit,  to  the 
opposition  our  fathers  offered  to  the  oppressive  laws  of 
Great  Britain,  You  were  told  that  this  opposition  might 
be  peaceably — might  be  constitutionally  made — that  you 
might  enjoy  all  the  advantages  of  the  Union  and  bear 
none  of  its  burdens.  Eloquent  appeals  to  your  passions, 
to  your  State  pride,  to  your  native  courage,  to  your 
sense  of  real  injury,  were  used  to  prepare  you  for  the 
period  when  the  mask  which  concealed  the  hideous 
features  of  Disunion  should  be  taken  off.  It  fell, 
and  you  were  made  to  look  with  complacency  on  ob- 
jects which  not  long  since  you  would  have  regarded 
with  horror.  Look  back  to  the  arts  which  have  brought 
you  to  this  state — look  forward  to  the  consequences  to 
which  it  must  inevitably  lead  I     Look  back  to  what  was 


356  Story  of  the  Constitution 

first  told  you  as  an  inducement  to  enter  into  this  danger- 
ous course.  The  great  political  truth  was  repeated  to 
you  that  you  had  the  revolutionary  right  of  resisting 
all  laws  that  were  palpably  unconstitutional  and  in- 
tolerably oppressive — it  was  added  that  the  right  to  nullify 
a  law  rested  on  the  same  principle,  but  that  it  was  a 
peaceable  remedy!  This  character  which  was  given  to 
it  made  you  receive  with  too  much  confidence  the  as- 
sertions that  were  made  of  the  unconstitutionality  of 
the  law  and  its  oppressive  efl'ects.  Mark,  my  fellow- 
citizens,  that  by  the  admission  of  your  leaders  the  un- 
constitutionality must  be  palpable,  or  it  will  not  justify 
either  resistance  or  nullification !  What  is  the  meaning 
of  the  word  palpahle  in  the  sense  in  which  it  is  here  used? 
that  which  is  apparent  to  every  one,  that  which  no  man 
of  ordinary  intellect  will  fail  to  perceive.  Is  the  un- 
constitutionality of  these  laws  of  that  description?  Let 
those  among  your  leaders  who  once  approved  and  ad- 
vocated the  principles  of  protective  duties,  answer  the 
question ;  and  let  them  choose  whether  they  will  be  con- 
sidered as  incapable,  then,  of  perceiving  that  which  must 
have  been  apparent  to  every  man  of  common  understand- 
ing, or  as  imposing  upon  your  confidence  and  endeavoring 
to  mislead  you  now.  In  either  case,  they  are  unsafe 
guides  in  the  perilous  path  they  urge  you  to  tread. 
Ponder  well  on  this  circumstance,  and  you  will  know 
how  to  appreciate  the  exaggerated  language  they  address 
to  you.  They  are  not  champions  of  liberty  emulating 
the  fame  of  our  Revolutionary  fathers,  nor  are  you  an 
oppressed  people,  contending,  as  they  repeat  to  you, 
against  worse  than  colonial  vassalage.  You  are  free 
members  of  a  flourishing  and  happy  Union.  There  is  no 
settled  design  to  oppress  you.  You  have,  indeed,  felt 
the  unequal  operation  of  laws  which  may  have  been  un- 
wisely, not  unconstitutionally  passed;  but  that  inequality 
must  necessarily  be  removed.     At  the  vqvj  moment  when 


President  Jackson's  Proclamation      357 

you  were  madly  uro:ed  on  to  the  unfortunate  course  you 
have  begun,  a  change  in  public  opinion  has  commenced. 
The  nearly  approaching  payment  of  the  public  debt,  and 
the  consequent  necessity  of  a  diminution  of  duties,  had 
already  caused  a  considerable  reduction,  and  that,  too, 
on  some  articles  of  general  consumption  in  your  State. 
The  importance  of  this  change  was  underrated,  and  you 
were  authoritatively  told  that  no  further  alleviation  of 
your  burdens  was  to  be  expected,  at  the  very  time  when 
the  condition  of  the  country  imperiously  demanded  such 
a  modification  of  the  duties  as  should  reduce  them  to  a 
just  and  equitable  scale.  But,  as  apprehensive  of  the 
effect  of  this  change  in  allaying  your  discontents,  you 
were  precipitated  into  the  fearful  state  in  which  you 
now  find  yourselves. 

I  have  urged  you  to  look  back  to  the  means  that  were 
used  to  hurry  you  on  to  the  position  you  have  now  as- 
sumed, and  forward  to  the  consequences  they  will  pro- 
duce. Something  more  is  necessary.  Contemplate  the 
condition  of  that  country  of  which  you  still  form  an 
important  part;  consider  its  government  uniting  in  one 
bond  of  common  interest  and  general  protection  so 
many  different  States — giving  to  all  their  inhabitants  the 
proud  title  of  American  Citizen — protecting  their  com- 
merce— securing  their  literature  and  arts — facilitating 
their  intercommunication — defending  their  frontiers — 
and  making  their  name  respected  in  the  remotest  parts 
of  the  earth!  Consider  the  extent  of  its  territory,  its 
increasing  and  happy  population,  its  advance  in  arts, 
which  render  life  agreeable,  and  the  sciences  which  ele- 
vate the  mind!  See  education  spreading  the  lights  of 
religion,  morality,  and  general  information  into  every 
cottage  in  this  wide  extent  of  our  Territories  and  States ! 
Behold  it  as  the  asylum  where  the  wretched  and  oppressed 
find  a  refuge  and  support!  Look  on  this  picture  of  hap- 
piness   and    honor,    and    say,    ^^'E,    too,    Are    Citizens 


35^  Story  of  the  Constitution 

OF  America — Carolina  is  one  of  these  proud  States 
her  arms  have  defended — her  best  blood  has  cemented 
this  happy  Union!  And  then  add,  if  you  can,  without 
horror  and  remorse,  this  happy  Union  we  will  dissolve 
— this  picture  of  peace  and  prosperity  we  will  deface — 
this  free  intercourse  we  will  interrupt — these  fertile  fields 
we  will  deluge  with  blood — the  protection  of  that  glori- 
ous flag  we  renounce — the  very  name  of  Americans  we 
discard.  And  for  what,  mistaken  men!  For  what  do 
you  throw  away  these  inestimable  blessings — for  what 
would  you  exchange  your  share  in  the  advantages  and 
honor  of  the  Union?  For  the  dream  of  a  separate  inde- 
pendence— a  dream  interrupted  by  bloody  conflicts  with 
your  neighbors,  and  a  vile  dependence  on  a  foreign  power. 
If  your  leaders  could  succeed  in  establishing  a  separa- 
tion, what  would  be  your  situation?  Are  you  united  at 
home — are  you  free  from  the  apprehension  of  civil 
discord,  with  all  its  fearful  consequences?  Do  our  neigh- 
boring republics,  every  day  suffering  some  new  revolu- 
tion or  contending  with  some  new  insurrection — do  they 
excite  your  envy?  But  the  dictates  of  a  high  duty  oblige 
me  solemnly  to  announce  that  you  cannot  succeed.  The 
laws  of  the  United  States  must  be  executed.  I  have  no 
discretionary  power  on  the  subject — my  duty  is  em- 
phatically pronounced  in  the  Constitution.  Those  who 
told  you  that  you  might  peaceably  prevent  their  ex- 
ecution, deceived  you — they  could  not  have  been  deceived 
themselves.  They  know  that  a  forcible  opposition  could 
alone  prevent  the  execution  of  the  laws,  and  they  know 
that  such  opposition  must  be  repelled.  Their  object  is 
disunion ;  but  be  not  deceived  by  names ;  disunion,  by 
armed  force,  is  Treason.  Are  you  really  ready  to 
incur  its  guilt?  If  you  are,  on  the  head  of  the  insti- 
gators of  the  act  be  the  dreadful  consequences — on  their 
heads  be  the  dishonor,  but  (m  yours  may  fall  the  punish- 
ment— on   your   unhappy    State   will   inevitably    fall    all 


President  Jackson's  Proclamation      359 

the  evils  of  the  conflict  you  force  upon  the  government 
of  your  country.  It  cannot  accede  to  the  mad  project 
of  disunion,  of  which  you  would  be  the  first  victims — 
its  first  magistrate  cannot,  if  he  would,  avoid  the  per- 
formance of  his  duty — the  consequence  must  be  fearful 
for  you,  distressing  to  your  fellow-citizens  here,  and  to 
the  friends  of  good  government  throughout  the  world. 
Its  enemies  have  beheld  our  prosperity  with  a  vexation 
they  could  not  conceal — it  was  a  standing  refutation  of 
their  slavish  doctrines,  and  they  will  point  to  our  dis- 
cord with  the  triumph  of  malignant  joy.  It  is  yet 
in  your  power  to  disappoint  them.  There  is  yet  time  to 
show  that  the  descendants  of  the  Pinckneys,  the  Surap- 
ters,  the  Rutledges,  and  of  the  thousand  other  names 
which  adorn  the  pages  of  your  Revolutionary  history, 
will  not  abandon  that  Union  to  support  which  so  many 
of  them  fought  and  bled  and  died.  I  adjure  you,  as  you 
honor  their  memory — as  you  love  the  cause  of  freedom, 
to  which  they  dedicated  their  lives — as  you  prize  the 
peace  of  your  country,  the  lives  of  its  best  citizens,  and 
your  own  fair  fame,  to  retrace  your  steps.  Snatch  from 
the  archives  of  your  State  the  disorganizing  edict  of  its 
convention — bid  its  members  to  reassemble  and  promul- 
gate the  decided  expressions  of  your  will  to  remain  in 
the  path  which  alone  can  conduct  you  to  safety,  pros- 
perity, and  honor — tell  them  that  compared  to  disunion, 
all  other  evils  are  light,  because  that  brings  with  it  an 
accumulation  of  all — declare  that  you  will  never  take 
the  field  unless  the  star-spangled  banner  of  your  country 
shall  float  over  you — that  you  will  not  be  stigmatized 
when  dead,  and  dishonored  and  scorned  while  you  live, 
as  the  authors  of  the  first  attack  on  the  Constitution 
of  your  country ! — its  destroyers  you  cannot  be.  You  may 
disturb  its  peace — you  may  interrupt  the  course  of  its 
prosperity — you  may  cloud  its  reimtation  for  stability — 
but  its  tranquillity  will  be  restored,  its  prosperity  will 


360  Story  of  the  Constitution 

return,  and  the  stain  upon  its  national  character  will 
be  transferred  and  remain  an  eternal  blot  on  the  memory 
of  those  who  caused  the  disorder. 

Fellow-citizens  of  the  United  States!  the  threat  of 
unhallowed  disunion — the  names  of  those,  once  respected, 
by  whom  it  is  uttered — the  array  of  military  force  to 
support  it — denote  the  approach  of  a  crisis  in  our  affairs 
on  which  the  continuance  of  our  unexampled  prosperity, 
our  political  existence,  and  perhaps  that  of  all  free  gov- 
ernments, may  depend.  The  conjuncture  demanded  a  free, 
a  full,  and  explicit  enunciation,  not  only  of  my  intentions, 
but  of  my  principles  of  action;  and  as  the  claim  was 
asserted  of  a  right  by  a  State  to  annul  the  laws  of  the 
Union,  and  even  to  secede  from  it  at  pleasure,  a  frank 
exposition  of  my  opinions  in  relation  to  the  origin  and 
form  of  our  government,  and  the  construction  I  give  to 
the  instrument  by  which  it  was  created,  seemed  to  be 
proper.  Having  the  fullest  confidence  in  the  justness 
of  the  legal  and  constitutional  opinion  of  my  duties 
which  has  been  expressed,  I  rely  with  equal  confidence 
on  your  undivided  support  in  my  determination  to  exe- 
cute the  laws — to  preserve  the  Union  by  all  constitu- 
tional means — to  arrest,  if  possible,  by  moderate  but 
firm  measures,  the  necessity  of  a  recourse  to  force;  and 
if  it  be  the  will  of  Heaven  that  the  recurrence  of  its 
primeval  curse  on  man  for  the  shedding  of  a  brother's 
blood  should  fall  upon  our  land,  that  it  be  not  called 
down  by  any  offensive  act  on  the  part  of  the  United 
States. 

Fellow-citizens !  the  momentous  case  is  before  you.  On 
your  undivided  support  of  your  government  depends  the 
decision  of  the  great  question  it  involves,  whether  your 
sacred  Union  will  be  preserved,  and  the  blessing  it  se- 
cures to  us  as  one  people  shall  be  perpetuated.  No  one 
can  doubt  that  the  unanimity  with  which  that  decision 
will  be  expressed,  will  be  such   as  to  inspire  new  con- 


President  Jackson's  Proclamation      361 

fidence  in  republican  institutions,  and  that  the  prudence, 
the  wisdom,  and  the  courage  which  it  will  bring  to  their 
defence,  will  transmit  them  unimpaired  and  invigorated 
to  our  children. 

May  the  Great  Ruler  of  nations  grant  that  the  signal 
blessings  with  which  He  has  favored  ours  may  not,  by  the 
madness  of  party,  or  personal  ambition,  be  disregarded 
and  lost,  and  may  His  wise  providence  bring  those  who 
have  produced  this  crisis  to  see  the  folly,  before  they 
feel  the  misery,  of  civil  strife,  and  inspire  a  returning 
veneration  for  that  Union,  which,  if  we  may  dare  to 
penetrate  His  designs.  He  has  chosen,  as  the  only  means 
of  attaining  the  high  destinies  to  which  we  may  reason- 
ably aspire. 

In  testimony  whereof,  I  have  caused  the  seal  of  the 
United  States  to  be  hereunto  affixed,  having  signed  the 
same  with  my  hand. 

Done  at  the  City  of  Washington,  this  10th  day  of 
December,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  thirty-two,  and  of  the  independence  of  the 
United  States  the  fifty-seventh. 

Andrew  Jackson. 
By  the  President, 

Edward  Livingston^  Secretary  of  State, 


ABSTRACT  OF  THE  DRED  SCOTT  DECISION,  1857 


The  question  is  simply  this:  Can  a  negro,  whose  an- 
cestors were  imported  into  this  country,  and  sold  as 
slaves,  become  a  member  of  the  political  community 
formed  and  brought  into  existence  by  the  Constitution 
of  the  United  States,  and  as  such  become  entitled  to  all 
the  rights,  and  privileges,  and  immunities,  guaranteed 
by  that  instrument  to  the  citizens?  One  of  which  rights 
is  the  privilege  of  suing  in  a  court  of  the  United  States 
in  the  cases  specified  in  the  Constitution. 

It  will  be  observed,  that  the  plea  applies  to  that  class 
of  persons  only  whose  ancestors  were  negroes  of  the 
African  race,  and  imported  into  this  country,  and  sold 
and  held  as  slaves.  The  only  matter  at  issue  before 
the  court,  therefore,  is,  whether  the  descendants  of  such 
slaves,  when  they  shall  be  emancipated,  or  who  are  born 
of  parents  who  had  become  free  before  their  birth,  are 
citizens  of  a  State,  in  the  sense  in  which  the  word 
citizen  is  used  in  the  Constitution  of  the  United  States. 
And  this  being  the  only  matter  in  dispute  on  the  plead- 
ings, the  court  must  be  understood  as  speaking  in  this 
opinion  of  that  class  only.  That  is,  of  those  persons 
who  are  the  descendants  of  Africans  who  were  imported 
into  this  country,  and  sold  as  slaves.  .  .  . 

The  words  "people  of  the  United  States"  and  "  citizen  " 
are  synonymous  terms,  and  mean  the  same  thing.  They 
both  describe  the  political  body  who,  according  to  our 

362 


Abstract  of  Dred  Scott  Decision       363 

republican  institutions,  form  the  sovereignty,  and  who 
hold  the  power  and  conduct  the  government  through  their 
representatives.  They  are  what  we  familiarly  call  the 
"  sovereign  people,"  and  every  citizen  is  one  of  this  peo- 
ple, and  a  constituent  member  of  this  sovereignty.  The 
question  before  us  is,  whether  the  class  of  persons  de- 
scribed in  the  plea  in  abatement  compose  a  portion  of 
this  people,  and  are  constituent  members  of  this  sov- 
ereignty? We  think  they  are  not,  and  that  they  are 
not  included,  and  were  not  intended  to  be  included,  un- 
der the  word  *'  citizens "  in  the  Constitution,  and  can 
therefore  claim  none  of  the  rights  and  privileges  which 
that  instrument  provides  for  and  secures  to  citizens  of 
the  United  States.  On  the  contrary,  they  were  at  that 
time  considered  as  a  subordinate  and  inferior  class  of 
beings,  who  had  been  subjugated  by  the  dominant  race, 
and  whether  emancipated  or  not,  yet  remained  subject 
to  their  authority,  and  had  no  rights  or  privileges  but 
such  as  those  who  held  the  power  and  the  government 
might  choose  to  grant  them. 

It  is  not  the  province  of  the  court  to  decide  upon  the 
justice  or  injustice,  the  policy  or  impolicy,  of  these  laws. 
The  decision  of  that  question  belonged  to  the  political 
or  law-making  power;  to  those  who  formed  the  sov- 
ereignty and  framed  the  Constitution.  The  duty  of  the 
court  is,  to  interpret  the  instrument  they  have  framed, 
with  the  best  lights  we  can  obtain  on  the  subject,  and 
to  administer  it  as  we  tind  it,  according  to  its  true  in- 
tent and  meaning  when  it  was  adopted. 

In  discussing  this  question  we  must  not  confound  the 
rights  of  citizenship  which  a  State  may  confer  within 
its  own  limits,  and  the  rights  of  citizenship  as  a  member 
of  the  Union.  It  does  not  by  any  means  follow,  because 
he  has  all  the  rights  and  privileges  of  a  citizen  of  a 
State,  that  he  must  be  a  citizen  of  the  United  States. 
He  may  have  all  the  rights  and  privileges  of  the  citizen 


364  Story  of  the  Constitution 

of  a  state,  and  yet  not  be  entitled  to  the  rights  and 
privileges  of  a  citizen  in  any  other  State.  For,  previous 
to  the  adoption  of  the  Constitution  of  the  United  States, 
every  State  had  the  undoubted  right  to  confer  on  whom- 
soever it  pleased  the  character  of  citizen,  and  to  endow 
him  with  all  its  rights.  But  this  character  of  course 
was  confined  to  the  boundaries  of  the  State,  and  gave 
him  no  rights  or  privileges  in  other  States  beyond  those 
secured  to  him  by  the  laws  of  nations  and  the  comity 
of  States.  Nor  have  the  several  States  surrendered  the 
power  of  conferring  these  rights  and  privileges  by  adopt- 
ing the  Constitution  of  the  United  States.  Each  State 
may  still  confer  them  upon  an  alien,  or  any  one  it  thinks 
proper,  or  upon  any  class  or  description  of  persons;  yet 
he  would  not  be  a  citizen  in  the  sense  in  which  that 
word  is  used  in  the  Constitution  of  the  United  States, 
nor  entitled  to  sue  as  such  in  one  of  its  courts,  nor  to 
the  privileges  and  immunities  of  a  citizen  in  the  other 
States.  The  rights  which  he  would  acquire  would  be 
restricted  to  the  State  which  gave  them.  The  Consti- 
tution has  conferred  on  Congress  the  right  to  establish 
an  uniform  rule  of  naturalization,  and  this  right  is  evi- 
dently exclusive,  and  has  always  been  held  by  this  court 
to  be  so.  Consequently,  no  State,  since  the  adoption  of 
the  Constitution,  can  by  naturalizing  an  alien  invest  him 
with  the  rights  and  privileges  secured  to  a  citizen  of  a 
State  under  the  Federal  Government,  although,  so  far 
as  the  State  alone  was  concerned,  he  would  undoubtedly 
be  entitled  to  the  rights  of  a  citizen,  and  clothed  with 
all  the  rights  and  immunities  which  the  Constitution 
and  laws  of  the  State  attached  to  that  character. 

It  is  very  clear,  therefore,  that  no  State  can,  by  any 
act  or  law  of  its  own,  passed  since  the  adoption  of 
the  Constitution,  introduce  a  new  member  into  the  po- 
litical community  created  by  tlie  Constitution  of  the 
United  States.     It  cannot  make  him  a  member  of  this 


Abstract  of  Dred  Scott  Decision       365 

community  by  making  liim  a  member  of  its  own.  And 
for  tlie  same  reason  it  cannot  introduce  any  person,  or 
description  of  persons,  who  were  not  intended  to  be  em- 
braced in  this  new  political  family,  which  the  Consti- 
tution brought  into  existence,  but  were  intended  to  be 
excluded  from  it. 

The  question  then  arises,  whether  the  provisions  of 
the  Constitution,  in  relation  to  the  personal  rights  and 
privileges  to  which  the  citizen  of  a  State  should  be  en- 
titled, embraced  the  negro  African  race,  at  that  time  in 
this  country,  or  who  might  afterward  be  imported,  who 
had  then  or  should  afterward  be  made  free  in  any  State; 
and  to  put  it  in  the  power  of  a  single  State  to  make  him 
a  citizen  of  the  United  States,  and  endue  him  with  the 
full  rights  of  citizenship  in  every  other  State  without 
their  consent?  Does  the  Constitution  of  the  United 
States  act  upon  him  whenever  he  shall  be  made  free 
under  the  laws  of  the  State,  and  raised  there  to  the 
rank  of  a  citizen,  and  immediately  clothe  him  with  all 
the  privileges  of  a  citizen  in  every  other  State,  and  in 
its  own  courts? 

The  court  think  the  affirmative  of  these  propositions 
cannot  be  maintained.  And  if  it  cannot,  the  plaintiff  in 
error  could  not  be  a  citizen  of  the  State  of  Missouri, 
within  the  meaning  of  the  Constitution  of  the  United 
States,  and,  consequently,  was  not  entitled  to  sue  in 
its  courts. 

But  the  power  of  Congress  over  the  person  or  prop- 
erty of  a  citizen  can  never  be  a  mere  discretionary  power 
under  our  Constitution  and  form  of  government.  The 
powers  of  the  government  and  the  rights  and  privileges 
of  the  citizen  are  regulated  and  plainly  defined  by  the 
Constitution  itself.  And  when  the  territory  becomes  a 
part  of  the  United  States,  the  Federal  Government  enters 
into   possession   in   the  character  impressed  upon   it  by 


366  Story  of  the  Constitution 

those  who  created  it.  .  .  .  The  territory  being  a  part 
of  the  United  States,  the  government  and  the  citizen 
both  enter  it  under  the  authority  of  the  Constitution, 
with  their  respective  rights  defined  and  marked  out; 
and  the  Federal  Government  can  exercise  no  power  over 
his  person  or  property,  beyond  what  that  instrument 
confers,  nor  lawfully  deny  any  right  which  it  has 
reserved.  .  .  . 

These  powers,  and  others,  in  relation  to  rights  of  per- 
son, .  .  .  are,  in  express  and  positive  terms,  denied  to 
the  general  government;  and  the  rights  of  private  prop- 
erty have  been  guarded  with  equal  care.  Thus  the  rights 
of  property  are  united  with  the  rights  of  person,  and 
placed  on  the  same  ground  by  the  Fifth  Amendment  to 
the  Constitution,  which  provides  that  no  person  shall 
be  deprived  of  life,  liberty,  and  property,  without  due 
process  of  law.  And  an  act  of  Congress  which  deprives 
a  citizen  of  the  United  States  of  his  liberty  or  property, 
merely  because  he  came  himself  or  brought  his  property 
into  a  particular  territory  of  the  United  States,  and 
who  had  committed  no  ofifence  against  the  laws,  could 
hardly  be  dignified  with  the  name  of  due  process  of 
law.  .  .  . 

The  powers  over  person  and  property  of  which  we 
speak  are  not  only  not  granted  to  Congress,  but  are  in 
express  terms  denied,  and  they  are  forbidden  to  exercise 
them.  And  this  prohibition  is  not  confined  to  the  States, 
but  the  words  are  general,  and  extend  to  the  whole 
territory  over  which  the  Constitution  gives  it  power  to 
legislate,  including  those  portions  of  it  remaining  under 
territorial  government,  as  well  as  that  covered  by  States. 
It  is  a  total  absence  of  power  everywhere  within  the 
dominion  of  the  United  States,  and  places  the  citizens 
of  a  territory,  so  far  as  these  rights  are  concerned,  on 
the  same  footing  with  citizens  of  the  States,  and  guards 
them  as  firmly  and  plainly  against  any  inroads  which 


Abstract  of  Dred  Scott  Decision        367 

the  general  government  might  attempt,  under  the  plea 
of  implied  or  incidental  powers,  .  .  . 

And  if  the  Constitution  recognizes  the  right  of  proj)- 
erty  of  the  master  in  a  slave,  and  makes  no  distinoticm 
between  that  descripticm  of  property  and  other  property 
owned  by  a  citizen,  no  tribunal,  acting  under  the  au- 
thority of  the  United  States,  whether  it  be  legislative, 
executive,  or  judicial,  has  a  right  to  draw  such  a  dis- 
tinction, or  deny  to  it  the  benefit  of  the  provisions  and 
guarantees  which  have  been  provided  for  the  protection 
of  private  property  against  the  encroachments  of  the 
government. 

Now  .  .  .  the  right  of  property  in  a  slave  is  distinctly 
and  expressly  affirmed  in  the  Constitution. 

Upon  these  considerations,  it  is  the  opinion  of  the 
court  that  the  act  of  Congress  [Missouri  Compromise] 
which  prohibited  a  citizen  from  holding  and  owning  prop- 
erty of  this  kind  in  the  territory  of  the  United  States 
north  of  the  line  therein  mentioned,  is  not  warranted 
by  the  Constitution,  and  is,  therefore,  void;  and  that 
neither  Dred  Scott  himself,  nor  any  of  his  family,  were 
made  free  by  being  carried  into  this  territory ;  even  if 
they  had  been  carried  there  by  the  owner,  with  the  in- 
tention of  becoming  a  permanent  resident. 


SOUTH   CAROLINA   ORDINANCE    OF    SECESSION, 

1860 

An  ordinance  to  dissolve  the  Union  between  the  State 
of  South  Carolina  and  other  States  united  with  her 
under  the  compact  entitled  "  The  Constitution  of  the 
United  States  of  America." 

We,  the  People  of  the  State  of  South  Carolina,  in 
Convention  assembled,  do  declare  and  ordain,  and  it  is 
hereby  declared  and  ordained,  that  the  ordinance  adopted 
by  us  in  Convention,  on  the  twenty-third  day  of  May,  in 
the  year  of  our  Lord  one  thousand  seven  hundred  and 
eighty-eight,  whereby  the  Constitution  of  the  United 
States  of  America  was  ratified,  and  also,  all  Acts  and 
parts  of  Acts  of  the  General  Assembly  of  this  State, 
ratifying  amendments  of  the  said  Constitution,  are 
hereby  repealed;  and  the  union  now  subsisting  between 
South  Carolina  and  other  States,  under  the  name  of 
"  The  United  States  of  America,"  is  hereby  dissolved. 


368 


SOUTH  CAROLINA  DECLARATION  OF 
INDEPENDENCE,   1860 

The  State  of  South  Carolina  having  resumed  her  sepa- 
rate and  equal  place  among  nations,  deems  it  due  to 
herself,  to  the  remaining  United  States  of  America,  and 
to  the  nations  of  the  world,  that  she  should  declare  the 
causes  which  have  led  to  this  act. 

In  the  year  1765,  that  portion  of  the  British  Empire 
embracing  Great  Britain,  undertook  to  make  laws  for 
the  government  of  that  portion  composed  of  the  thirteen 
American  Colonies.  A  struggle  for  the  right  of  self- 
government  ensued,  which  resulted,  on  the  4th  July,  1776, 
in  a  Declaration  by  the  Colonies,  "  that  they  are,  and 
of  right  ought  to  be,  free  and  independent  states,  and 
that,  as  free  and  independent  States,  they  have  full 
power  to  levy  war,  to  conclude  peace,  contract  alliances, 
establish  commerce,  and  do  all  other  acts  and  things 
which  independent  States  may  of  right  do." 

They  further  solemnly  declare,  that  whenever  any 
"  form  of  government  becomes  destructive  of  the  ends 
for  which  it  was  established,  it  is  the  right  of  that  peo- 
ple to  alter  or  abolish  it,  and  to  institute  a  new  govern- 
ment." Deeming  the  Government  of  Great  Britain  to 
have  become  destructive  of  these  ends,  they  declared  that 
the  Colonies  "  are  absolved  from  all  allegiance  to  the 
British  Crown,  and  that  all  political  connection  between 
them  and  the  State  of  Great  Britain  is,  and  ought  to 
be,  totally  dissolved." 

34  369 


3  7°  Story  of  the  Constitution 

In  pursuance  of  this  Declaration  of  IndeiJendeuce, 
each  of  the  thirteen  States  proceeded  to  exercise  its 
separate  sovereignty ;  adopted  for  itself  a  Constitution, 
and  appointed  officers  for  the  administration  of  govern- 
ment in  all  its  departments — Legislative,  Executive,  and 
Judicial. 

Thus  were  established  the  two  great  principles  as- 
serted by  the  Colonies,  namely:  the  right  of  a  State  to 
govern  itself;  and  the  right  of  a  people  to  abolish  a 
Government  when  it  becomes  destructive  of  the  ends 
for  which  it  was  instituted.  And  concurrent  with  the 
establishment  of  these  principles,  was  the  fact,  that  each 
colony  became  and  was  recognized  by  the  mother  coun- 
try as  a  FREE,  SOVEREIGN,  and  independent  state. 

In  1787,  Deputies  were  appointed  by  the  States  to 
revise  the  Articles  of  Confederation,  and  on  17th  Sep- 
tember, 1787,  these  Deputies  recommended,  for  the  adop- 
tion of  the  States,  the  Articles  of  Union,  known  as  the 
Constitution  of  the  United  States. 

The  parties  to  whom  the  Constitution  was  submitted 
were  the  several  sovereign  States ;  they  were  to  agree  or 
disagree,  and  when  nine  of  them  agreed,  the  compact 
was  to  take  effect  among  those  concurring;  and  the 
General  Government,  as  the  common  agent,  was  then  to 
be  vested  with  their  authority. 

If  only  nine  of  the  thirteen  States  had  concurred,  the 
other  four  would  have  remained  as  they  were — separate, 
sovereign  States,  independent  of  any  of  the  provisions 
of  the  Constitution,  In  fact,  two  of  the  States  did  not 
accede  to  the  Constitution  until  long  after  it  had  gone 
into  operation  among  the  other  eleven ;  and  during  that 
interval,  they  exercised  the  functions  of  an  independent 
nation. 

By  this  Constitution,  certain  duties  were  imposed  upon 
the  several  States,  and  the  exercise  of  certain  of  their 


South  Carolina  Declaration  371 

powers  was  restrained.  ...  To  remove  all  doubt,  an 
amendment  was  added,  which  declared  that  the  powers 
not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States,  respectively,  or  to  the  people.  On  23d  May,  1788, 
South  Carolina,  by  a  Convention  of  her  people,  passed 
an  Ordinance  assenting  to  this  Constitution,  and  after- 
wards altered  her  own  Constitution  to  conform  herself 
to  the  obligation  she  had  undertaken. 

Thus  was  established,  by  compact  between  the  States, 
a  Government,  with  defined  objects  and  powers,  limited 
to  the  express  words  of  the  grant.  This  limitation  left 
the  whole  remaining  mass  of  power  subject  to  the  clause 
reserving  it  to  the  States  or  to  the  people,  and  rendered 
unnecessary  any  specification  of  reserved  powers. 

We  hold  that  the  Government  thus  established  is  sub- 
ject to  the  two  great  principles  asserted  in  the  Declara- 
tion of  Independence;  and  we  hold  further,  that  the 
mode  of  its  formation  subjects  it  to  the  third  funda- 
mental principle,  namely:  the  law  of  compact.  We 
maintain  that  in  every  compact  between  two  or  more 
parties,  the  obligation  is  mutual;  that  the  failure  of 
one  of  the  contracting  parties  to  perform  a  material 
part  of  the  agreement,  entirely  releases  the  obligation 
of  the  other;  and  that  where  no  arbiter  is  provided, 
each  party  is  remitted  to  its  own  judgment  to  determine 
the  fact  of  failure  with  all  its  consequences. 


The  ends  for  which  this  Constitution  was  framed  are 
declared  by  itself  to  be  "  to  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tranquillity,  provide 
for  the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and 
posterity." 

These  ends  it  endeavored  to  accomplish  by  a  Federal 


Z12  Story  of  the  Constitution 

Government,  in  which  each  State  was  recognized  as  an 
equal,  and  had  separate  control  over  its  own  institutions. 
The  right  of  property  in  slaves  was  recognized  by  giv- 
ing to  free  persons  distinct  political  rights,  by  giving 
them  the  right  to  represent,  and  burthening  them  with 
direct  taxes  for  three-fifths  of  their  slaves ;  by  authorizing 
the  importation  of  slaves  for  twenty  years ;  and  by  stipu- 
lating for  the  rendition  of  fugitives  from  labor. 

We  affirm  that  these  ends  for  which  this  Government 
was  instituted  have  been  defeated,  and  the  Government 
itself  has  been  made  destructive  of  them  by  the  action 
of  the  non-slaveholding  States.  These  States  have  as- 
sumed the  right  of  deciding  upon  the  propriety  of  our 
domestic  institutions ;  and  have  denied  the  rights  of  prop- 
erty established  in  fifteen  of  the  States  and  recognized 
by  the  Constitution ;  they  have  denounced  as  sinful  the 
institution  of  Slavery;  they  have  permitted  the  open 
establishment  among  them  of  societies,  whose  avowed 
object  is  to  disturb  the  peace  and  to  eloign  the  prop- 
erty of  the  citizens  of  other  States.  They  have  en- 
couraged and  assisted  thousands  of  our  slaves  to  leave 
their  homes ;  and  those  who  remain,  have  been  incited  by 
emissaries,  books  and  pictures  to  servile  insurrection. 

For  twenty-five  years  this  agitation  has  been  steadily 
increasing,  until  it  has  now  secured  to  its  aid  the  power 
of  the  Common  Government.  Observing  the  forms  of  the 
Constitution,  a  sectional  party  has  found  within  that 
article  establishing  the  Executive  Department,  the  means 
of  subverting  the  Constitution  itself.  A  geographical 
line  has  been  drawn  across  the  Union,  and  all  the  States 
north  of  that  line  have  united  in  the  election  of  a  man 
to  the  high  office  of  President  of  the  United  States  whose 
opinions  and  purposes  are  hostile  to  slavery.  He  is  to 
be  entrusted  with  the  administration  of  the  Common 
Government,  because  he  has  declared  that  '^  Government 
cannot  endure  permanently   half  slave,   half  free,"  and 


South  Carolina  Declaration  373 

that  the  public  mind  must  rest  in  the  belief  that  Slavery 
is  in  the  course  of  ultimate  extinction. 

On  the  4th  March  next,  this  party  will  take  possession 
of  the  Government.  It  has  announced,  that  the  South 
shall  be  excluded  from  the  common  Territory;  that  the 
Judicial  Tribunals  shall  be  made  sectional,  and  that  a 
war  must  be  waged  against  slavery  until  it  shall  cease 
throughout  the  United  States. 

The  Guarantees  of  the  Constitution  will  then  no  longer 
exist;  the  equal  rights  of  the  States  will  be  lost.  The 
slaveholding  States  will  no  longer  have  the  power  of 
self-government,  or  self-protection,  and  the  Federal  Gov- 
ernment will  have  become  their  enemy. 

Sectional  interest  and  animosity  will  deepen  the  irri- 
tation, and  all  hope  of  remedy  is  rendered  vain,  by  the 
fact  that  public  opinion  at  the  north  has  invested  a 
great  political  error  with  the  sanctions  of  a  more 
erroneous  religious  belief. 

We,  therefore,  the  people  of  South  Carolina,  by  our 
delegates,  in  Convention  assembled,  appealing  to  the 
Sni)reme  Judge  of  the  world  for  the  rectitude  of  our 
intentions,  have  solemnly  declared  that  the  Union  hereto- 
fore existing  between  this  State  and  the  other  States 
of  North  America,  is  dissolved,  and  that  the  State  of 
South  Carolina  has  resumed  her  position  among  the 
nations  of  the  world,  as  a  separate  and  independent  State ; 
with  full  power  to  levy  war,  conclude  peace,  contract  al- 
liances, establish  commerce,  and  to  do  all  other  acts  and 
things  which  independent  States  may  of  right  do. 


PROCLAMATION  OF  EMANCIPATION 
January  1, 1863 

Whereas,  on  the  twenty-second  day  of  September,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and 
sixty-two,  a  proclamation  was  issued  by  the  President  of 
the  United  States,  containing,  among  other  things,  the 
following,  to  wit: 

"  That  on  the  first  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  sixty-three,  all  per- 
sons held  as  slaves  within  any  State  or  designated  part 
of  a  State,  the  people  whereof  shall  then  be  in  rebellion 
against  the  United  States,  shall  be  then,  thenceforward, 
and  forever  free;  and  the  Executive  Government  of  the 
United  States,  including  the  military  and  naval  authority 
thereof,  will  recognize  and  maintain  the  freedom  of  such 
persons,  and  will  do  no  act  or  acts  to  repress  such  per- 
sons or  any  of  them,  in  an}'  efforts  they  may  make  for 
their  actual  freedom, 

"  That  the  Executive  will,  on  the  first  day  of  January 
aforesaid,  by  proclamation,  designate  the  States  and  parts 
of  States,  if  any,  in  which  the  people  thereof  respectively 
shall  then  be  in  rebellion  against  the  United  States;  and 
the  fact  that  any  State,  or  the  people  thereof,  shall  on 
that  day  be  in  good  faith  represented  in  the  Congress 
of  the  United  States,  by  members  chosen  thereto  at  elec- 
tions wherein  a  majority  of  the  qualified  voters  of  such 
State  shall  have  participated,  shall,  in  the  absence  of 
strong   countervailing   testimony,   be   deemed    conclusive 

374 


Proclamation  of  Emancipation         375 

evidence  that  such  State,  and  tlie  people  thereofj  are  not 
then  in  rebellion  against  the  United  States." 

Now,  therefore,  I,  Abraham  Lincoln^  President  of  the 
United  States,  by  virtne  of  the  power  in  me  vested  as 
Coniniander-in-Chief  of  the  army  and  navy  of  the  United 
States  in  time  of  actual  armed  rebellion  against  the 
authority  and  government  of  the  United  States,  and  as 
a  fit  and  necessary  war  measure  for  suppressing  said  re- 
bellion, do,  on  this  first  day  of  January,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  sixty-three, 
and  in  accordance  with  my  purpose  so  to  do,  publicly 
proclaimed  for  the  full  period  of  one  hundred  days  from 
the  day  first  above  mentioned,  order  and  designate,  as 
the  States  and  parts  of  States  wherein  the  people  thereof 
respectively  are  this  day  in  rebellion  against  the  United 
States,  the  following,  to  wit: 

Arkansas,  Texas,  Louisiana  (except  the  parishes  of  St. 
Bernard,  Plaquemine,  Jefferson,  St.  John,  St.  Charles, 
St.  James,  Ascension,  Assumption,  Terre  Bonne,  La- 
fourche, St.  Marie,  St.  Martin,  and  Orleans,  including 
the  city  of  New  Orleans),  Mississippi,  Alabama,  Florida, 
Georgia,  South  Carolina,  North  Carolina,  and  Virginia 
(except  the  forty -eight  counties  designated  as  West  Vir- 
ginia, and  also  the  counties  of  Berkley,  Accomac,  North- 
ampton, Elizabeth  City,  York,  Princess  Anne,  and 
Norfolk,  including  the  cities  of  Norfolk  and  Portsmouth), 
and  which  excepted  parts  are  for  the  present  left  precisely 
as  if  this  proclamation  were  not  issued. 

And,  by  virtue  of  the  power  and  for  the  purpose  afore- 
said, I  do  order  and  declare  that  all  persons  held  as 
slaves  within  said  designated  States  and  parts  of  States 
are  and  henceforth  shall  be  free;  and  that  the  Executive 
Government  of  the  United  States,  including  the  military 
and  naval  authorities  thereof,  will  recognize  and  main- 
tain the  freedom  of  said  persons. 

And  I  hereby  enjoin  upon  the  people  so  declared  to  be 


376  Story  of  the  Constitution 

free,  to  abstain  from  all  violence,  unless  in  necessary 
self-defence;  and  I  recommend  to  them  that  in  all  cases, 
when  allowed,  they  labor  faithfully  for  reasonable  wages. 

And  I  further  declare  and  make  known  that  such  per- 
sons of  suitable  condition  will  be  received  into  the  armed 
service  of  the  United  States,  to  garrison  forts,  positions, 
stations,  and  other  places,  and  to  man  vessels  of  all 
sorts  in  said  service. 

And  upon  this  act,  sincerely  believed  to  be  an  act  of 
justice,  warranted  by  the  Constitution,  upon  military 
necessity,  I  invoke  the  considerate  judgment  of  mankind 
and  the  gracious  favor  of  Almighty  God. 

In  testimony  whereof,  I  have  hereunto  set  my  name, 
and  caused  the  seal  of  the  United  States  to  be  affixed. 
Done  at  the  City  of  Washington,  this  first  day  of  Janu- 
ary, in  the  year  of  our  Lord  one  thousand  eight 
[l.  s.]  hundred  and  sixty-three,  and  of  the  Independence 
of  the  United  States  the  eighty-seventh. 

Abraham  Lincoln. 
By  the  President: 
William  H.  Seward,  Secretary  of  State, 


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McMaster,  J.  B.,  Daniel  Webster.     N.  Y.,  1902. 
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N.  Y.  and  London,  1905. 
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18  V.     Boston,  1903. 

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Works.     Ed.  by  R.  K.  Cralle.     6  v.     N.  Y.,  1861-1874. 

Curry,  J.  L.  M.,  Civil  History  of  the  Government  of  the  Con- 
federate States.     Richmond,  1901. 

Davis,  Jefferson,  Rise  and  Fall  of  the  Confederate  Govern- 
ment.   3  V.     N.  Y.,  1881. 

Houston,  D.  F.,  A  Critical  Study  of  Nullification  in  South 
Carolina.  N.  Y.  and  London,  1896.  (Harvard  Historical 
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HOLST,  H.  von,  John  C.  Calhoun.  Boston  and  N.  Y.,  1899. 
(Am.  Stat.  Ser.) 

Hunt,  Gaillard,  John  C.  Calhoun.  Philadelphia,  1908.  (Ameri- 
can Crisis  Biographies.) 

Powell,  Nullification  and  Secession. 

Lincoln 

Brooks,  Noah,  Abraham  Lincoln  and  the  Downfall  of  American 

Slavery.     N.  Y.,  1894.     (Heroes  of  the  Nations.) 
Burgess,  John  W.,  The  Civil  War  and  the  Constitution,  1859- 

1865.     2  v.     N.  Y.,  1901. 
Dunning,  W.  A.,  Essays  on  the  Civil  War  and  Reconstruction. 

N.   Y.,  1898. 
Lincoln,  Abraham,  Complete  Works.    Ed.  by  Nicolay  and  Hay. 

12  v.     New  ed.     N.  Y.,  1905. 
McCarthy,   C.   H.,  Lincoln's   Plan   of   Reconstruction.     N.   Y., 

1901. 


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1903.     (Am.  Stat.  Ser.) 
NicoLAY,  J.  G.,  A  Short  Life  of  Abraham  Lincoln.     N.  Y.,  1904. 
NicoLAY  and  Hay,  Abraham  Lincoln;  a  History.     10  v.    N,  Y., 

1890. 
Rhodes,   James  Ford,  History  of  the    United  States  from  the 

Compromise   of   1850.      (1850-1877.)      7    v.      N.   Y.,   1893- 

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Smith,    T.   C,  Parties  and  Slavery,   1850-1859.     N.   Y.,   1906. 

(Am.  Nat.  Ser.) 
Tarbell,  Ida  M.,  Life  of  Abraham  Lincoln.    2  v.     N.  Y.,  1900. 

Stevens 

Blaine,  James  G.,  Twenty  Years  of  Congress;  from  Lincoln  to 
Garfield.     2  v.     Norwich,  Conn.,  1884-1886. 

Burgess,  John  W.,  Reconstruction  and  the  Constitution.  N.  Y., 
1905. 

Callender,   E.,  Thaddeus  Stevens;  Commoner.     Boston,  1882. 

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Reconstruction,  Political  and  Economic.     N.  Y.,  1907.  (Am. 

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INDEX 


Adams,  John,  leader  in  po- 
litical discussion,  5;  not  a 
delegate  to  Constitutional 
Convention,  12;  member  of 
the  committee  to  draft  the 
Declaration  of  Independence, 
83;  appointed  to  negotiate 
commercial  treaties,  88; 
malignant  assaults  upon  him, 
95 ;  commissioned  Marbury 
Justice  of  the  Peace,  133 

Adams,  J.  Q.,  elected  President 
by  the  House  of  Represen- 
tatives, 157;  had  deserted 
the  Federalist  party,  160; 
supports  the  right  of  peti- 
tion, 173 

Adams,  Samuel,  leader  in  po- 
litical discussion,  5 

Alien  and  Sedition  Acts,  95, 
171;  surpassed  in  their  in- 
fringement upon  individual 
liberty,  100;  broke  su- 
premacy of  Federalist  party, 
112 

American  Insurance  Co.  v. 
Canter,  144 

Annapolis  Convention,  consid- 
ered commercial  relations, 
8;  Hamilton  drafted  address 
of,  9;  recommended  a  gen- 
eral convention,  9;  Madison's 
part  in,  107-108 

Articles  of  Confederation,  see 
Confederation 


B 


Hamilton,  37;  established, 
46;  constitutionality  of,  48; 
second  United  States  Bank 
attacked  by  Jackson,  160; 
Webster's  attitude  toward, 
185;  text  of  Jefferson's  opin- 
ion on  the  constitutionality 
of,  315  ff;  text  of  Hamil- 
ton's opinion,  318  ff 

Bedford  declares  small  States 
v?ill  seek  foreign  ally  rather 
than  submit  to  compulsion 
of  Virginia   plan,   16 

Benjamin,  Senator,  accused 
Douglas  of  breaking  faith 
with  the  South,  218 

Bibliography,  377  ff 

Biddle,  "Nick,"  161 

Bill  of  Rights,  see  Rights 

Blaine,  J.   G.,  232 

Brearly  proposed  partition  of 
United  States  into  thirteen 
equal  parts,  62 

Buchanan,  President,  attitude 
toward  Secession,  221 ;  be- 
lieved Congress  was  power- 
less to  prevent  Secession, 
235 

Burr,  defended  by  Jackson  in 
public  harangue,  154 

Butler,  interests  of  North  and 
South  as  different  as  those 
of  Russia  and  Turkey,  20; 
advocates  including  blacks 
equally  with  whites  in  rule 
of  representation,  20 


Bank,  National,  advocated  by 

25  385 


Calhoun,    John    C,    advances 
idea  of  indivisibility  of  sov- 


386 


Index 


Calhoun,  John  C. — Continued 
ereignty,  124;  logical  suc- 
cessor of  Roane,  145;  elected 
Vice-President,  157;  opposed 
by  Jackson  in  1832,  162  ff; 
course  contrasted  with  that 
of  Webster,  171-172,  191- 
194;  chairman  of  the  Com- 
mittee on  Foreign  Affairs 
and  an  advocate  of  the  War 
of  1812,  171,  192;  resigned 
office  of  Vice-President  and 
elected  Senator,  179;  argu- 
ment on  Nullification,  179- 
180;  historical  argument, 
184;  chronology,  190;  sketch 
of  his  life,  190  ff ;  the 
product  of  a  new  era,  192; 
Secretary  of  War  and  Vice- 
President,  194;  change  from 
national  views,  195;  "South 
Carolina  Exposition,"  a  pro- 
gramme of  Nullification,  195; 
disappointed  in  hope  of  re- 
lief from  Jackson,  196; 
guiding  spirit  in  South 
Carolina's  action,  196;  op- 
posed by  President  Jackson, 
197;  secures  reduction  of  the 
tariff,  198;  love  for  the 
Union,  198;  views  as  to 
the  nature  of  the  Union, 
199  ff;  the  Constitution 
a  compact,  199-200,  205- 
206;  contradiction  in  his 
view  of  democracy,  200;  de- 

■  veloped  the  idea  of  a  "  con- 
current majority,"  201 ;  re- 
jects the  theory  of  social 
contract,  202;  origin  of  so- 
ciety natural,  of  govern- 
ment, by  contract,  203; 
logical  character  of  his 
thought,  204;  change  in 
meaning  of  words  due  to 
change  in  philosophical 
thought,  205-206;  sov- 
ereignty regarded  as  in- 
divisible and  located  in 
the  individual  States,  206; 
attitude  toward  slavery, 
207;  proposed  amendment 
to  the  Constitution  to  avoid 


the     dangers     of    disunion, 

207 

California,  question  of  admis- 
sion as  a  free  State,  234 

Chase,  Justice,  132 

Checks  and  balances,  system 
of,  in  Federal  Government, 
25,  128 

Cherokee  nation  v.  State  of 
Georgia,   164 

Chisholm  v.  Georgia,  72,  132 

Civil  Rights  Bill,  245 

Civil  War,  possibility  of  avert- 
ing it  by  vigorous  action  in 
1832,  163;  began  with  firing 
on  Fort  Sumter,  237;  effect 
of,  upon  theory  of  our  gov- 
ernment, 261 

Clay,  Henry,  representative  of 
new  spirit  of  the  West,  121; 
favors  J.  Q.  Adams's  elec- 
tion in  House  of  Represen- 
tatives, 157;  leader  of  the 
opposition  to  Jackson,  158; 
leader  in  forcing  on  the  War 
of  1812,  171;  the  "great 
compromiser,"  177;  repre- 
sentative of  national  spirit 
of  the  West,  192 

Clinton,  Governor,  view  of 
New  York's  relation  to  the 
Union,  37-38 

Cohens  v.  Virginia,  138,  189 

Colonies,  union  of,  to  throw 
off  oppression,  7;  acquisi- 
tion of,  by  the  United  States, 
255 

Colonists,  political  theories  of 
the,  5;  influenced  by  Locke 
and  Montesquieu,  6;  devel- 
oped new  phase  of  rights,  6 

Commerce,  no  power  in  the 
Confederation  to  regulate, 
8;  regulation  by  Congress, 
22-23;  "commerce  clause" 
of  Constitution  basis  of 
large  federal  powers,  23; 
power  of  Congress  to  regu- 
late, 143;  "commerce  clause" 
source  of  much  of  recent 
growth  of  Constitution, 
269 

Compromise,   Constitution,  the 


Index 


387 


Compromise — Con  tinned 

result  of,  4;  first,  between 
large  and  small  States,  14; 
"Connecticut,"  16-17;  sec- 
ond, on  slave  enumeration  in 
representation,  20-22;  third, 
on  regulation  of  commerce, 
22-23;  fourth,  on  character 
of  Executive,  23-25;  pro- 
duced a  government  "  partly 
national  and  partly  federal," 
30;  between  the  Federal 
Government  and  South  Caro- 
lina, 198;  compromise  of 
1850,  211;  to  reconcile  the 
South,  235 

Confederate  States  of 
America  established,  220, 
236 

Confederation,  weakness  of,  7, 
109;  lack  of  power  to  regu- 
late commerce,  8;  need  of 
money,  46 

Confederation,  Articles  of, 
come  into  existence,  6; 
amendment  of,  rejected  by 
Convention,  13;  equality  of 
States  under,  14;  Hamilton 
believed,  must  be  swept 
away,  36;  appeals  of  the 
Annapolis  Convention  for 
revision  of,  37;  text  of  the, 
279  ff 

Confederation,  Congress  of, 
large  powers,  but  no  ade- 
quate means  of  enforcing 
them,  7;  no  power  to  regu- 
late commerce,  8;  calls 
Constitutional  Convention, 
10 

Confiscation  favored  by  Ste- 
vens, 238 

Congress,  representation  in, 
17-18,  21-22;  given  power 
to  regulate  interstate  and 
foreign  commerce,  23 ; 
leadership  passes  from  the 
Executive  to  Congress,  193; 
power  over  slavery,  213; 
Thaddeus  Stevens  a  leader 
of,  231;  regarded  by  Presi- 
dent Buchanan  as  powerless 
to    prevent    Secession,    235; 


attempts  of,  at  reconciliation 
with  the  South,  235;  special 
session  of,  July  4,  1861,  237; 
representation  in,  of  the  re- 
constructed States,  243,  249; 
right  of,  to  regulate  the 
government  of  national 
territory,  261 
Congressional  caucus,  158 
Connecticut     Compromise 

adopted,  16-17 
Constitution,  the  story  of,  3; 
not  solely  the  written  in- 
strument, 4;  the  result  of 
compromise,  4;  literary 
finish  of,  due  to  Gouvemeur 
Morris,  11;  ratification  of, 
by  conventions  of  nine 
States  necessary  for  its 
adoption,  13;  growth 
through  interpretation,  26; 
influence  of  the  Federalist 
upon  adoption  of,  41 ;  Hamil- 
ton's view  as  to  the  nature  of 
the,  43;  "loose"  and  "strict" 
construction  of,  48-50;  not  a 
compact  according  to  Wil- 
son, 70;  bounds  of  "loose" 
construction  of  the,  passed, 
96 ;  "  strict  "  construction  of 
the,  and  the  purchase  of 
Louisiana,  98;  regarded  by 
Madison  as  the  social  and 
governmental  contract,  115; 
does  not  follow  the  flag,  120, 
259;  worship  of  the,  129; 
"  efficiency  "  of  the,  demon- 
strated, 132-135;  effect  of 
Jackson  upon  the,  158  ff; 
whether  or  not  a  compact, 
177;  Webster's  argument, 
179  ff;  Calhoun's,  199-200, 
205-206;  recognition  of  slav- 
ery by  the,  213;  regarded  as 
indissoluble  by  Lincoln,  222; 
proposed  amendment  to  se- 
cure slavery,  235;  regarded 
by  Stevens  as  destroyed  in 
the  seceding  States,  239;  de- 
velopment of  the,  due  to 
territorial  and  commercial 
expansion,  255  ff ;  text  of 
the,  292  ff 


388 


Index 


Constitutional  Convention, 
chronology,  2;  character  of 
delegates  in  the,  10;  declares 
that  a  national  government 
ought  to  be  established,  13; 
decides  to  admit  new  States 
on  terms  of  equality  with 
the  old,  19;  main  features  of 
the  government  elaborated 
by  the,  25;  withdrawal  from 
the,  of  Yates  and  Lansing, 
38;  of  Hamilton,  40;  Wil- 
son's part  in  the,  60  ff; 
Madison's  part  in  the,  107  ff ; 
alliance  in  the,  of  advocates 
of  State-Rights  and  of  de- 
mocracy, 200 

Constitutionality,  see  Law 

Continental  Congress,  33 

Contract,  origin  of  society  and 
of  government  in,  5;  the  so- 
cial, regarded  as  basis  of 
society  by  Wilson,  67;  by 
Madison,  115;  the  obligation 
of,  not  to  be  impaired  by 
law,  174;  as  basis  of  society 
rejected  by  Calhoun,  202 

Cooper,  Dr.  Miles,  President  of 
King's  College,  33 

Cooper  V.  Telfair,  132 

Cooper  Union  speech,  219-220 

Comwallis,  106 

Corporations,  effect  of,  on  con- 
stitutional development,  255, 
265  ff ;  have  menaced  safety 
of  society,  266 

Cotton,  made  the  "  staple  pro- 
duct"  of  the  South  by  the 
invention  of  the  cotton-gin, 
22 

Crawford,  157,  158 

Critical  Period  of  American 
History,  7;  influence  of, 
missed  by  Jefferson,  90 

Crittenden  Resolution  opposed 
by  Stevens,  238 


Dartmouth  College  case,  144, 
174 

Davis,  Jefferson,  elected  Presi- 
dent of  the  Confederacy,  236 


Declaration  of  Independence, 
incorporated  the  rights  of 
man,  6;  text  of,  273  ff ;  of 
South  Carolina,  366  ff ; 

Democracy,  development  of,  in 
colonies,  5;  spirit  of,  em- 
bodied in  Jefferson,  79; 
contrast  between  Jefferson's 
ideas  and  modern  democracy, 
80;  distrust  of,  in  Constitu- 
tional Convention,  128;  con- 
trast between  Jeffersonian 
and  Jacksonian  democracy, 
149-151;  triumph  of  real 
democracy  in  Jackson's  elec- 
tion, 158-160 

Democratic  party,  Jackson's 
followers  adopt  the  name  of, 
157;  control  of  Congress  by, 
feared  by  the  Republicans, 
231 

Democratic-Republican  party, 
beginning  of,  as  party  of 
"strict"  construction,  54-55; 
organization  of,  by  Jeffer- 
son, 94;  opposed  the  Alien 
and  Sedition  acts,  95,  112; 
swallowed  up  the  Federalist 
party,  99,  129;  Jefferson  the 
leader  of,  112;  modification 
of  principles  of,  under  Jeffer- 
son and  Madison,  119;  suc- 
cess of,  in  1800  not  complete, 
127,  149;  unable  to  over- 
throw the  constructive  meas- 
ures of  Federalists,  98, 
129;  belief  in  the  multitude 
and  local  self-government, 
149 

Dickinson,  John,  leader  in  po- 
litical discussion,  5;  delegate 
to  Constitutional  Convention, 
11 

Douglas,  Stephen  A.,  author  of 
doctrine  of  "Squatter 
Sovereignty,"  211,  216; 
fathered  the  Kansas-Neb- 
raska Bill  and  espoused  the 
Dred  Scott  decision,  216; 
contradiction  between  doc- 
trine of  "  Popular  Sov- 
ereignty "  and  the  Dred 
Scott  decision,  217 


Index 


389 


Dred  Scott  decision,  declared 
Congress  and  the  Territorial 
Legislatures  impotent  to  pro- 
hibit slavery  in  the  national 
domain,  214;  abstract  of, 
362  ff 

Duane,  letter  to,  from  Hamil- 
ton, on  weakness  of  the 
Confederation,  36 

Dulaney,  leader  in  political 
discussion,  5 


E 


"  Elastic  Clause,"  of  the  Con- 
stitution, 48 

Ellsworth,  Oliver,  delegate  to 
Constitutional  Convention, 
10;  favors  proportional  rep- 
resentation in  one  branch 
and  equality  of  the  States 
in  the  other,  17 

Emancipation  Proclamation, 
issued  by  Lincoln,  226;  text 
of,  374  ff 

Embargo,  100,  171 

Enforcing  acts,  100 

Entail  abolished  in  Virginia, 
85 

«'  Era  of  Good  Feeling,"  157 

Executive,  the,  differences  of 
opinion  in  the  Convention 
regarding,  23-24;  kind  of, 
brings  aristocratic  and  demo- 
cratic elements  in  Con- 
vention into  opposition,  24; 
direct  election  of,  advocated 
by  Wilson,  61;  decision  of, 
on  political  policies,  is  con- 
clusive, 136;  raised  to  a 
position  of  supremacy  by 
Jackson,  156;  power  of, 
sinks  with  Jackson's  retire- 
ment from  the  Presidency, 
165;  power  of,  increased  un- 
der Lincoln,  224;  recedes 
after  the  war,  254;  position 
of,  affected  by  Imperialism, 
260 

Expansion,  key-note  of  last 
ten  years,  256;  as  result  of 
Spanish  War  different  from 
that    which    had    preceded, 


258;  of  recent  kind  not  fore- 
seen by  the  framers  of  the 
Constitution,  259;  has  in- 
creased the  centralizing  ten- 
dencies of  the  Federal  Gov- 
ernment, 260;  has  strength- 
ened the  position  of  the 
Executive,  260 


F 


"Fathers,  The,"  4;  distrust  of 
democracy,  128 

Federal  Government,  entrusted 
with  all  matters  of  common 
interest,  25,  70;  regarded 
as  judge  of  its  own  powers, 
43,  133-136,  138;  need  of 
firm  financial  footing,  46; 
strengthening  effect  of 
Hamilton's  policy  upon  the, 
48-49;  Wilson's  conception 
of  the,  56,  60;  no  league 
but  a  national  government, 
117;  a  government  of  limited 
powers,  136 ;  power  of ,  to  main- 
tain itself  against  disunion, 
162;  centralizing  tendencies 
of  the,  increased  by  colonial 
expansion,  260;  undertakes 
new  functions,  264 

Federal  State,  idea  of  a,  56; 
nature  of  a,  stated  by  Wil- 
son, 64 

Federal  Union,  nature  of,  dis- 
cussed by  Wilson,  65,  69;  by 
Madison,  114  if;  nationaliz- 
ing effect  upon,  of  War  of 
1812,  120;  nature  of,  in 
Webster's  view,  176  ff ;  in 
Calhoun's,  199  ff 

Federalist,  the,  major  portion 
written  by  Hamilton,  41; 
Madison  and  Jay  contribu- 
tors to,  41;  influence  upon 
adoption  of  Constitution,  41 ; 
written  with  a  purpose,  QG 

Federalist  party,  beginning  of, 
as  party  of  "  loose "  con- 
struction, 54-55;  Hamilton 
the  leader  of,  94;  passed 
the  Alien  and  Sedition  Acts, 
95,    112;    absorbed    by    De- 


390 


Index 


Federalist  party — Continued 
m  o  c  r  a  t  i  c-Republicans,  99, 
129;  feared  the  weakening 
effects  of  victory  of  Be- 
rn o  c  r  a  t  i  c-Republicans  on 
Federal  Government,  150 

Fifteenth  Amendment,  logical 
result  of  reconstruction 
legislation,  249 

Fletcher  v.  Peck,  174 

Foote  Resolution,  175 

Force  Bill,  179 

Fort  Sumter,  firing  on,  the 
beginning  of  war,  237 

Fourteenth  Amendment,  pro- 
visions of,  246;  rejected  by 
Southern  States  with  excep- 
tion of  Tennessee,  248; 
adoption  by  Southern  States 
made  a  condition  of  their 
being  entitled  to  representa- 
tion in  Congress,  249 

Franklin,  Benjamin,  delegate 
to  Constitutional  Convention, 
11;  proposed  Convention 
should  open  with  prayer,  17; 
member  of  committee  to 
draft  the  Declaration  of  In- 
dependence, 83;  appointed  to 
negotiate  commercial  treat- 
ies, 88 

Free  Soilers  led  by  Thaddeus 
Stevens,  233 

Freedman's  Bureau  Bill,  245 

"  Freeport  heresy,"  218 

Fugitive  Slave  Law,  influence 
of,  upon  Stevens,  233;  cause 
of  irritation,  234;  revision 
of,  as  a  concession  to  the 
South,  235 


G 


Genet,  95 

Gerry,  Elbridge,  delegate  to 
Constitutional  Convention, 
10;  moved  to  prevent  num- 
ber of  representatives  in 
lower  house  from  new  States 
ever  exceeding  that  of  the 
old  States,  19;  attributes 
evils  to  democracy,  39;  spe- 
cial envoy  to  France,  131 


Gibbons  v.  Ogden,  143 

Government,  questions  of, 
fought  out  in  law  courts 
and  public  prints,  5;  self-, 
in  the  colonies,  5;  origin  of, 
in  contract,  5;  strength  in, 
necessary  to  liberty,  7;  dif- 
ference between  federal  and 
national  form  of,  13;  na- 
tional form  of,  approved  by 
the  Convention,  13;  aim  of, 
20;  separation  of  powers  of, 
in  Federal  Government,  25; 
true  nature  of  the  Federal 
Government  not  determined 
by  the  Constitution,  30; 
Hamilton's  views  as  to  the 
separation  of  the  powers  of, 
45 

H 

Hamilton,  Alexander,  saw  need 
of  common  commercial  reg- 
ulations, 8;  drafted  address 
of  Annapolis  Convention,  9; 
delegate  to  Constitutional 
Convention,  11;  on  its  au- 
thority, 13;  disapproves  of 
both  the  Virginia  and  the 
New  Jersey  plan,  17;  chro- 
nology, 28;  foresaw  the  pos- 
sibility of  growth  in  national 
government,  30;  services  in 
forming  the  Constitution 
and  inaugurating  the  gov- 
ernment, 30;  relationship 
with  Washington,  31,  35; 
sketch  of  his  career,  31  ff ; 
first  public  speech  and  writ- 
ings, 34;  military  career, 
34-35;  national  feeling  of, 
36;  member  of  Continental 
Congress,  35;  letter  to 
Duane  on  weakness  of  the 
Confederation  and  plan  of 
national  bank,  36-37;  in  the 
Annapolis  Convention,  37; 
chosen  a  delegate  to  the 
Constitutional  Convention, 
38;  distrust  of  democracy, 
39;  presents  his  plan  of 
Union,  39;  withdrew  from 
Convention,  40 ;  writes  major 


Index 


391 


Hamilton,  Alexander — 

Continued 
portion  of  Federalist,  41; 
defeats  Clinton  in  New  York 
Convention  and  secures 
adoption  of  Constitution, 
42;  view  as  to  nature  of 
Constitution  and  the  Federal 
Government,  43  ff;  attitude 
toward  a  Bill  of  Rights,  45; 
appointed  Secretary  of  the 
Treasury,  46 ;  carries 
through  Congress  the  As- 
sumption Acts,  Excise  Bill, 
and  National  Bank  Act,  46; 
Tariff  Act,  47;  attitude 
toward  "  implied  powers," 
48;  became  the  head  of  the 
Federalist  party,  49;  op- 
posed by  Jefferson,  49- 
50;  resigned  as  Secretary 
of  Treasury,  50;  idea  of 
government  contrasted  with 
that  of  Wilson  and  of  Jeffer- 
son, 80;  part  in  location  of 
national  capital,  91 ;  es- 
timate of  Jefferson's  char- 
acter, 98;  text  of  opinion  as 
to  the  constitutionality  of  the 
Bank  of  the  United  States, 
318  ff 

Hartford  Convention,  176,  180; 
text  of  the  amendments  to 
the  Constitution  proposed  by 
the,  337  ff 

Hayes-Tilden  election,  253 

Hayne,  Nullification  argu- 
ment replied  to  by  Webster, 
175,  179 

Henry,  Patrick,  leader  in  po- 
litical discussion,  5 ;  not  a 
delegate  to  the  Constitu- 
tional Convention,  12 

House  of  Representatives,  pro- 
portional representation  in, 
17-18;  eventual  power  of 
electing  a  President,  25 


Impeachment  rejected  as  a 
"  political  proceeding,"  250 

Imperialism,  ushered  in  by  the 
Spanish  War,  255;  effect  of, 


upon  the  position  of  the 
President,  260 

"  Implied  powers,"  Hamilton's 
views  on  the,  48;  doctrine 
of,  accepted  by  the  Supreme 
Court,  138,  142 

Industrialism,  questions  of, 
linked  with  Imperialism, 
255;  individualism  and  free 
competition  as  basis  of,  have 
given  way  to  combination, 
266 

Inherent  powers  possessed  by 
the  Federal  Government,  72 

Interpretation,  peculiar  p  r  o- 
minence  of,  in  our  system 
of  government,  26;  Hamil- 
ton's view  regarding,  37; 
growth  of  the  Constitution 
through  legal,  127  ff 


Jackson,  Andrew,  chronology, 
148;  unconscious  embodi- 
ment of  new  conditions,  151; 
sketch  of  life,  152  ff;  public 
harangue  in  defence  of  Burr, 
154;  conception  of  de- 
mocracy, 154  ff ;  introduced 
"  spoils  system "  into  the 
national  administration,  156; 
raised  the  Executive  to  po- 
sition of  supremacy,  156; 
victory  at  New  Orleans,  156; 
Seminole  War,  156;  defeated 
for  the  presidency,  157;  fol- 
lowers of,  take  name  of 
Democrats,  157;  effects  of 
Jackson's  election,  158  ff; 
Executive  regarded  as  di- 
rect representative  of  the 
people,  158,  164;  works  third 
revolution  in  our  history, 
160;  elected  on  anti-Hamil- 
ton platform,  160;  fight  with 
the  Bank,  160  ff;  second  ad- 
ministration almost  a  fight 
between  classes,  161 ;  in- 
fluence upon  national  de- 
velopment, 161 ;  proclamation 
against  Nullification,  162, 
179;   asserts   equal   right  of 


392 


Index 


Jackson,  Andrew — Continued 
President  to  pass  on  consti- 
tutionality of  laws,  164;  con- 
demned for  assumption  of 
unconstitutionality  of  the 
Bank,  164,  and  for  refusal 
to  carry  out  the  judgment 
of  the  Supreme  Court,  165; 
hatred  of,  for  Marshall  and 
Calhoun,  197;  text  of  pro- 
clamation, 345  ff 

Jay  contributes  to  Federalist, 
41 

Jefferson,  Thomas,  not  a  dele- 
gate to  Constitutional  Con- 
vention, 12;  opposed  a  na- 
tional bank,  49;  opposition 
to  Hamilton,  49-50;  retired 
from  the  Cabinet,  50;  chro- 
nology, 78;  embodiment  of 
spirit  of  democracy,  79; 
cardinal  political  principles, 
79;  idea  of  government  con- 
trasted with  that  of  Hamil- 
ton and  of  Wilson,  80; 
sketch  of  his  life,  81  ff ; 
author  of  Declaration  of  In- 
dependence, 83;  work  in  the 
Virginia  House  of  Delegates, 
84-87;  entail  and  primogeni- 
ture, 85;  religious  freedom, 
85-86;  education,  86;  drew 
up  civil  and  criminal  code, 
86;  attitude  toward  slavery, 
86;  governor  of  Virginia, 
87-88;  member  of  Congress, 
88;  signed  treaty  of  peace 
with  Great  Britain,  88; 
minister  to  France,  88;  re- 
lation to  French  Revolution, 
89;  attitude  toward  pro- 
posed Constitution,  90-91 ; 
appointed  Secretary  of  State, 
91 ;  part  in  location  of  na- 
tional capital,  91;  opposi- 
tion to  Hamilton,  92-93;  re- 
garded Hamilton's  financial 
measures  as  a  puzzle,  92; 
professed  to  fear  the  de- 
struction by  Hamilton  of  re- 
publican government,  93 ; 
organizes  a  political  party, 
94-95;   triumph  due  largely 


to  influence  of  foreign  af- 
fairs, 95,  and  to  Alien  and 
Sedition  Acts,  95;  believed 
bounds  of  "  loose  "  construc- 
tion had  been  passed,  96; 
wrote  the  original  draft  of 
the  Kentucky  Resolutions,  97, 
112;  triumph  did  not  lessen 
strength  of  Federal  Govern- 
ment, 98;  purchase  of  Louisi- 
ana, 98,  regarded  as  uncon- 
stitutional, 99;  retirement  to 
Monticello,  100;  text  of  opin- 
ion on  the  constitutionality 
of  a  national  bank,  315  ff 

Johnson,  Andrew,  attitude 
toward  Lincoln's  plan  of  Re- 
construction, 231;  early  at- 
titude of  hostility  to  the 
South  soon  changed,  231; 
plan  of  Reconstruction  pro- 
posed, 243;  but  discredited 
with  Congress,  244,  245; 
"  swinging  around  the  cir- 
cle," 247;  impeachment  of, 
249 

Johnson,  Dr.,  proposed  that  in 
one  branch  the  people,  and 
in  the  other,  the  States, 
ought  to  be  represented,  17 


K 


Kansas-Nebraska  Bill,  211 ; 
threw  open  the  Territories 
to  slavery,  214;  fathered  by 
Douglas,  216 

Kentucky  Resolutions,  50,  95, 
96,  133,  139,  171,  176,  180; 
Jefferson's  draft  of,  97,  112; 
advocate  right  of  revolution, 
Madison  said,  98;  views  of, 
advanced  in  Richmond  En- 
quirer, 139;  claimed  as  law- 
ful source  of  Nullification, 
195;  text,  326  ff 

King,  Rufus,  delegate  to  Con- 
stitutional Convention,  10; 
would  prohibit  number  of 
representatives  in  lower 
house  from  new  States  ever 
exceeding  that  of  the  old 
States,  19 


Index 


393 


Labor  unions,  a  controlling  fac- 
tor in  modern  industrial 
world,  265 ;  have  menaced 
safety  of  society,  266 

Lansing,  supports  Paterson's 
plan,  15;  delegate  from  New 
York  to  the  Constitutional 
Convention,  38;  discusses  the 
Virginia  and  the  New  Jer- 
sey plans,  63 

Law,  power  to  determine  con- 
stitutionality of,  113;  lo- 
cated in  Supreme  Court, 
113;  asserted  by  Marshall, 
133 

Legal  tender,  issue  of,  ad- 
vocated by  Stevens,  240 

Lewis,  William  B.,  Jackson's 
political  manager,  157 

Lincoln,  Abraham,  chronology, 
210;  sketch  of  his  life,  212 
ff ;  attitude  toward  slavery, 
213;  opposition  to  the  Dred 
Scott  decision,  215;  fear  of 
extension  of  slavery  to  the 
free  States,  216;  joins  Re- 
publican party,  216;  rivalry 
with  Douglas  and  the  sena- 
torial contest  of  1858,  216 
if;  not  an  abolitionist,  217; 
debates  with  Douglas,  217  ff ; 
position  on  the  slavery  ques- 
tion when  a  presidential 
candidate,  219;  Cooper 
Union  speech,  220;  Secession 
changes  issue  from  extension 
of  slavery  to  preservation  of 
the  Union,  221;  view  as  to 
the  indissoluble  character  of 
the  Union,  222;  Secession 
ordinances  regarded  as  hav- 
ing no  legal  effect,  223;  use 
of  the  war-power  to  pre- 
serve the  Union,  224;  led  to 
temporary  dictatorship,  224; 
development  of  the  "  war- 
powers,"  225;  Emancipation 
Proclamation,  226 ;  the  Union 
regarded  as  more  precious 
than  the  liberty  of  the  slaves, 
226-227;     views    on    Recon- 


struction, 227,  242;  plan  of 
Reconstruction  approved  by 
Johnson  and  rejected  by 
Congress,  231 

Locke,  theory  of,  followed  by 
colonists,  6;  idea  of  dele- 
gated authority  followed  by 
Hamilton,  43 

Louisiana,  purchase  of  and 
"strict"  construction,  98; 
purchase  of,  regarded  as 
unconstitutional  by  Jeffer- 
son, 99;  and  by  Madison, 
119;  importance  of  a  closer 
union  of,  realized  by  Jack- 
son, 154 

M 

Madison,  James,  saw  need  of 
common  commercial  regula- 
tions, 8;  delegate  to  Con- 
stitutional Convention,  12; 
shows  coercion  of  State  un- 
der the  Confederation  would 
be  war,  15;  argues  against 
evils  of  New  Jersey  plan, 
16;  defended  admission  of 
new  States  on  terms  of 
equality  with  the  older 
States,  19;  antithesis  of 
States  not  due  to  size,  but 
to  climate  and  to  presence 
or  absence  of  slaves,  20; 
contributes  to  Federalist,  41 ; 
aided  Jefferson  in  Virginia 
legislature,  87;  drafted  the 
Virginia  Resolutions,  96;  re- 
gards Nullification  not  as  a 
"  constitutional  "  but  as  a 
"  natural  "  right,  98 ;  chro- 
nology, 102 ;  the  "  Father  of 
the  Constitutio  n,"  103 ; 
leader  of  opposition  in  Con- 
gress to  Hamilton's  policy, 
103-104;  antagonism  due  to 
economic  difference  between 
the  States,  104;  unconscious 
agent  of  centralizing  forces, 
105;  sketch  of  his  life,  105 
ff ;  early  national  tendencies, 
106;  part  in  the  Constitu- 
tional   Convention,    107    ff; 


394 


Index 


Madison,  James — Coyitinued 
need  of  fundamental  change 
in  Articles  of  Confederation, 
109;  the  Federal  Govern- 
ment a  compound  form,  110, 
121 ;  reaction  against  cen- 
tralizing tendencies.  111; 
drafted  Virginia  Resolutions, 
113;  interpretation  of  the 
Resolutions,  114-115;  re- 
garded State  as  founded  upon 
a  contract,  115 ;  rejects 
right  of  Nullification  and 
Secession,  except  as  revolu- 
tionary, 115-117;  Union  not 
regarded  as  a  mere  league, 
117;  appointed  Secretary  of 
State,  118;  faults  as  an  ex- 
ecutive officer,  118;  opposed 
purchase  of  Louisiana,  119; 
nationalizing  effects  of  his 
career,  119-121;  War  of 
1812  forced  upon  him,  120; 
retired  from  the  Presidency, 
121 ;  retirement  spent  largely 
in  expounding  the  Consti- 
tution, 121-122;  untenable 
position  of  "  Madisonian 
Federalism,"  122;  attitude 
toward  sovereignty,  123;  re- 
fused to  issue  Marbury  his 
commission,  133 ;  protests 
against  the  use  of  Jeffer- 
son's name  in  support  of 
Nullification,  195 

Madisonian  Federalism,  122 

Marbury  v.  Madison,  71,  113, 
133,  137,  139;  abstract  of 
decision  in  the  case  of,  335  ff 

Marshall,  seized  possibilities 
of  "  commerce  clause "  of 
Constitution,  23;  anticipated 
by  Wilson,  71;  asserts  power 
of  Supreme  Court  to  declare 
a  law  unconstitutional,  113; 
chronology,  126 ;  interprets 
Constitution  in  national 
sense,  127-129;  "expounder 
of  the  Constitution,"  130; 
sketch  of  his  life,  130  ff ; 
demonstrates  the  "efficiency" 
of  the  Constitution,  132- 
135;   and   the    "extent"    of 


the  judicial  power  of  Su- 
preme Court,  137-143;  con- 
tests with  the  Virginia 
courts,  137-143;  approves 
doctrine  of  "  implied  pow- 
ers," 141-143;  lays  down 
fundamental  principles  of 
"commerce  clause,"  143; 
Dartmouth  College  case, 
144;  establishes  right  of  the 
Union  to  acquire  territory, 
144;  in  conflict  with  Jack- 
son, 164 

Martin,  Luther,  delegate  to 
Constitutional  Convention, 
11 ;  supporter  of  the  rights 
of  the  small  States,  11;  op- 
poses Virginia  plan,  16 

Martin  v.  Hunter's  lessee,  138 

Mason,  George,  delegate  to  Con- 
stitutional Convention,  11; 
defended  admission  of  new 
States  on  terms  of  equality 
with  the  older  States,  19 

McCulloch  V.  Maryland,  138 

Mexican  War,  Lincoln's  at- 
titude toward,  212;  brought 
question  of  the  extension  of 
slavei-y  to  the  front,  234 

Mississippi,  dispute  concern- 
ing free  navigation  _  of,  9; 
cession  of  Mississippi  valley 
to  Spain  opposed  by  Madi- 
son, 106;  importance  of,  ap- 
preciated by  Jackson,  154 

Missouri  Compromise,  passed, 
172;  repealed,  211 

Monroe,  157 

Monroe  doctrine  reformulated 
by  Roosevelt,  263 

Montesquieu,  influenced  Ameri- 
can thought,  6;  separation 
of  powers  of  government 
based  upon  a  misconception, 
44 

Monticello,  Sage  of,  100 

Morocco,  United  States  parti- 
cipates in  conference  on,  264 

Morris,  Gouverneur,  delegate  to 
Constitutional  Convention, 
11 ;  stated  difference  between 
federal  and  national  govern- 
ment, 13;  feared  control  of 


Index 


395 


Morris,  Gouverneur — Continued 
the  Atlantic  States  by  the 
West,  19;  moved  that  repre- 
sentatives and  direct  taxes 
should  be  apportioned  ac- 
cording to  numbers,  21 

Morris,  Robert,  delegate  to 
Constitutional  Convention, 
11;  loss  of  his  fortune  af- 
fected his  reputation,  58 


N 


National  Anti-Slavery  Society 
established,  186 

National  Bank,  see  Bank 

National  Government,  vote  of 
the  Constitutional  Conven- 
tion to  establish  a,  13; 
growth  of  the  power  of  the, 
25 

Nature,  state  of,  eighteenth- 
century  view  of,  5;  accord- 
ing to  Wilson,  not  a  state  of 
war,  67 

Navigation  Act,  passage  of  a, 
by  Congress  desired  by  the 
Eastern  and  Middle  States, 
22 

Negro  suffrage,  adoption  of, 
forced  on  the  Southern 
States,  249 

New  England  opposed  the 
War  of  1812,  192 

New  Jersey  plan,  equality  of 
States  retained  in,  15;  cen- 
tre of  the  struggle  between 
the  large  and  the  small 
States,  15,  39;  presented  by 
Paterson,  15,  63;  discussed, 
and  rejected,  63 

North,  the,  difference  between, 
and  the  South,  20;  felt  the 
force  of  national  sentiment, 
170 ;  rejects  Nullification  and 
Secession  as  destructive  of 
the  Union,  185;  attitude  of, 
toward  the  Fugitive  Slave 
Law,  234 

Nullification,  by  a  single  State 
not  intended  by  Jefferson, 
98;  support  sought  for  in 
Virginia     Resolutions,     114; 


rejected  by  Madison,  115- 
117;  secession  its  logical 
successor,  130,  177;  attacked 
by  Jackson,  162;  defended 
by  Hayne,  175;  who  asserted 
right  of  each  State  to  judge 
as  to  the  constitutionality 
of  laws,  182;  asserted  to  be 
a  constitutional  right,  184; 
declared  revolutionary  by 
Webster,  184;  programme  of, 
set  forth  by  Calhoun,  195; 
text  of  South  Carolina  ordi- 
nance of,  340  ff 


O 


Ordinance  of  Secession  of 
South  Carolina,  text,  368 

Otis,  James,  leader  in  political 
discussion,  5 


Pacific  Blockade  of  Venezue- 
lan port  regretted  by  Roose- 
velt, 263 

Paine,  Thomas,  champion  of 
democracy,  5 ;  Common  Sense, 
83 

Pakenham,  156 

Panama  Canal,  building  of, 
made  possible  by  Roosevelt, 
264 

Paterson,  William,  delegate  to 
Constitutional  Convention, 
11;  presented  New  Jersey 
plan,  15,  63;  contests  right 
of  Convention  to  vary  idea 
of  equal  sovereignty,  15,  62; 
discusses  the  two  plans,  63 

Pinckney,  Charles,  delegate  to 
Constitutional  Convention, 
12;  difference  between  North 
and  South  due  to  divergent 
economic  interests,  20 

Pinckney,  C.  C,  delegate  to 
Constitutional  Convention, 
12 ;  advocates  including 
blacks  equally  with  whites 
in  rule  of  representation, 
20;  abolition  of  slave  trade 
an  invitation  to  South  Caro- 


396 


Index 


Pinckney,    C.    C. — Continued 
Una   to   withdraw   from   the 
Union,  22;   special  envoy  to 
France,  131 

Primogeniture      abolished      in 
Virginia,  85 


R 


Randolph,  Edmund,  delegate 
to  Constitutional  Conven- 
tion, 12;  on  the  authority  of 
the  Convention  to  go  beyond 
mere  amendment  of  the 
Articles  of  Confederation, 
13;  presented  Virginia  plan, 
15;  defines  national  plan 
as  a  resort  to  national  legis- 
lation over  individuals, 
16 

Reconstruction,  Lincoln's  views 
of,  227;  Lincoln's  theory  of, 
227,  242;  period  of,  begun, 
231 ;  Stevens,  the  dictator  of 
the  early  period  of,  237; 
Stevens's  "  conquered  pro- 
vince," theory  of,  243;  ef- 
fects of  Johnson's  plan  of, 
244;  by  Executive  opposed 
by  Stevens,  245;  by  Con- 
gress, 247-249;  dependent 
upon  adoption  of  Fourteenth 
Amendment,  249;  military 
governments  during,  249 

Religious  freedom  secured  in 
Virginia,  85-86 

Representation,  equal  under 
Articles  of  Confederation, 
14;  under  Constitution,  pro- 
portional in  lower  house, 
equal  in  Senate,  18;  direct 
taxes  in  proportion  to  repre- 
sentation, 21 ;  slaves  counted 
at  three-fifths  ratio  in,  22; 
Wilson's  views  on,  in  the 
Convention,  62 

Republican  party,  Lincoln 
early  a  member  of,  216; 
fears  the  Lincoln-Johnson 
plan  of  Reconstruction,  231; 
firm  against  the  extension  of 
slavery,  235-236 


Revolution,  the,  preceded  by 
political  discussion,  5;  no 
new  ideas  of  government  de- 
veloped during,  6;  with  close 
of,  national  feeling  weak- 
ened, 7;  assured  the  right 
to  life,  liberty,  and  the 
pursuit  of  happiness,  12 

Rights,  Bills  of,  6;  opposed  by 
Hamilton,  45;  lack  of  in  the 
Constitution,  a  cause  of 
Jefferson's     opposition,     90; 

Rights  of  man  developed  by 
the  colonists,   6 

Roane,  Judge,  138 

"  Roosevelt  Policies,"  guides  of 
government   action,   256 

Roosevelt,  Theodore,  chron- 
ology, 252;  identified  with 
the  changes  of  the  last  ten 
years,  256;  sketch  of  his 
life,  257;  relation  to  changes, 
258;  influence  upon  the  posi- 
tion of  the  Executive,  261; 
leader  in  bringing  realiza- 
tion of  position  of  United 
States  as  a  world-power, 
263;  reformulates  the  Mon- 
roe Doctrine,  263;  action  in 
San  Domingo,  263;  makes 
Panama  Canal  possible,  264; 
secures  participation  of 
United  States  in  conference 
on  Morocco,  264;  secures  ad- 
mission of  South  and  Cen- 
tral American  States  to 
second  Hague  Conference, 
264;  typical  of  constitu- 
tional changes  resulting 
from  modern  industrial  con- 
ditions, 264;  influence  used 
to  settle  coal  strike,  266; 
perceived  the  dangers  from 
combinations  of  labor  and  of 
capital,  267;  theory  of  gov- 
ernment, 267-268;  con- 
trasted with  JeflFerson  and 
Jackson,  268;  belief  in  gov- 
ernment as  an  organ  for 
the  advancement  of  the  in- 
terests of  society,  268;  re- 
semblance of  theory  of,  to 
that  of  Wilson,  268 


Index 


397 


Rutledge,  John,  delegate  to 
the  Constitutional  Conven- 
tion, 12 


S 


Schuyler,  Miss  Elizabeth,  mar- 
ried to  Alexander  Hamilton, 
35 

Scott,  see  Dred  Scott 

Secession,  logical  successor  to 
Nullification,  130;  declared 
revolutionary  by  Webster, 
184;  ordinance  of,  passed, 
220,  235;  regarded  by  Lin- 
coln as  rebellion,  221-223 

Second  Hague  Conference,  ad- 
mission of  South  and  Cen- 
tral American  States,  264 

Sedition,  see  Alien  and  Sedi- 
tion Acts 

Seminole,  War,  156 

Senate,  equal  representation  in, 
proposed,  17;  agreed  to,  18; 
vote  per  capita,  not  by 
States,  19;  equal  represen- 
tation in,  opposed  by  Wil- 
son, 62-63 

Separation  of  the  powers  of 
government,  see  Government 

Shays's  Rebellion,  in  full 
swing,  8;  alarm  caused  by, 
9,   24 

Sherman,  Roger,  delegate  to 
Constitutional  C  o  n  v  ention, 
10;  proposes  proportional 
representation  in  first 
branch  and  equality  in  Sen- 
ate, 17;  distrust  of  the  peo- 
ple, 39 

Slavery,  belief  that  it  would 
die  out,  22;  demands  exten- 
sion, 173;  the  great  issue 
from  days  of  Nullification, 
185 ;  National  Anti-Slavery 
Society  established,  186;  at- 
titude toward,  of  Webster, 
186;  of  Calhoun,  196,  207; 
of  Lincoln,  213;  in  the 
Territories,  214 ;  existence 
of,  the  cause  of  difference 
between  North  and  South, 
225 ;    regarded   as    a   "  posi- 


tive good "  by  the  South, 
234 

Slaves,  counted  at  three-fifths 
ratio  in  enumeration  for 
representation  in  lower 
house,  21-22;  importation 
not  to  be  forbidden  before 
1808,  23;  emancipated,  226 

South,  the,  difference  between 
the  North  and,  20;  slaves  a 
special  kind  of  property  in, 
20;  not  yet  set  apart  in 
thought  and  feeling,  163; 
felt  the  force  of  national 
sentiment,  170;  eager  for 
the  War  of  1812,  192;  favor 
of  the,  courted  by  Johnson, 
231 ;  attitude  of,  toward  the 
Fugitive  Slave  Law,  234; 
acceptance  by,  of  Johnson's 
plan  of  Reconstruction,  244 

Sovereignty,  Hamilton's  con- 
ception of,  44;  resides  in  the 
people  according  to  Wilson 
68;  regarded  as  divisible  by 
Madison  and  as  indivisible 
by  Calhoun,  123-124;  meant 
to  Calhoun  the  final  and  ul- 
timate power  of  judgment, 
206;  of  the  nation,  254 

Spain,  dispute  with,  over  the 
free  navigation  of  the  Mis- 
sissippi, 8 

Spanish  War  ushered  in  Im- 
perialism, 255 

Spoils  System  introduced  into 
the  national  administration 
by  Jackson,   156 

Squatter  Sovereignty,  211 

State-Rights,  Calhoun,  the 
champion  of,  in  the  Senate, 
196;  conflict  between,  and 
democracy,  200;  a  new  kind 
of,  262 

States,  experience  of,  in  mak- 
ing constitutions,  6;  attitude 
of  the,  toward  the  Con- 
federation, 7;  opposition  be- 
tween the  large  and  the 
small,  14,  43-44,  62-64; 
real  difference  was  between 
Northern  and  Southern,  20; 
Hamilton's    idea    of   the    re- 


398 


Index 


States — Continued 

lation  of  the,  to  the  Federal 
Government,  44;  Wilson's, 
64,  69-70,  72-73,  110;  Jeffer- 
son's, 96;  Madison's,  109- 
110,  115;  Marshall's,  132; 
Jackson's,  162;  Webster's, 
179;  Calhoun's,  199-200; 
Lincoln's,  222 ;  Stevens's, 
236;  Roosevelt's,  261-262 

States,  Northern,  desired  clos- 
ure of  the  Mississippi  in 
return  for  commercial  treaty, 
9;  opposition  of,  to  the 
Southern  States,  20-22;  de- 
sired regulation  of  commerce 
by  Congress,  22;  slavery  dis- 
appeared in  the,  22 

States,  Southern,  opposition  of, 
to  closure  of  the  Mississippi 
by  Spain,  9;  opposition  of, 
to  Eastern  States,  20-22 

Stevens,  Thaddeus,  chronology, 
230;  leader  in  Congress  in 
fight  against  Johnson,  232; 
chairman  of  the  Committee 
on  Ways  and  Means,  232; 
sketch  of  his  life,  232  ff; 
views  on  slavery,  233;  leader 
of  the  Free  Soilers  in  Con- 
gress, 233;  opposed  to  com- 
promise with  the  South, 
236;  influence  of,  became 
dominant  with  Lincoln's 
death,  237;  dictator  during 
early  Reconstruction,  237; 
theory  regarding  Secession, 
237  iff;  opposed  the  "  Crit- 
tenden Resolution,"  238;  ad- 
vocated confiscation,  238; 
not  scrupulous  about  the 
constitutionality  of  means 
employed  to  uphold  the  Con- 
stitution, 239;  advocated  the 
issue  of  legal  tender  notes, 
240;  attitude  toward  the 
admission  of  West  Virginia, 
240-241;  regarded  proclama- 
tion of  blockade  as  recogni- 
tion of  Confederate  States, 
241;  in  conflict  with  theory 
of  Reconstruction  of  Lin- 
coln and  Johnson,  242;  "con- 


quered province "  theory, 
243;  leader  of  the  radical 
reaction  in  North  against 
Johnson's  plan  of  Recon- 
struction, 244;  House  Chair- 
man of  Committee  on 
Reconstruction,  245;  opposed 
Reconstruction  by  Executive 
action  alone,  245;  secures 
passage  of  the  Freedman's 
Bureau  Bill  and  Civil  Rights 
Bill,  245;  introduced  Four- 
teenth Amendment  in  the 
House,  246;  makes  Recon- 
struction the  result  of  Con- 
gressional action,  247;  re- 
futation of  argument  that 
the  seceding  States  had  never 
been  out  of  the  Union,  247- 
248;  attempted  impeachment 
of  President  Johnson,  249 
Story,  Judge,  opinion  of  Hamil- 
ton's argument  on  the  Na- 
tional Bank,  48 
Sumter,  Fort,  fired  upon,  237 
Supreme  Court,  part  played 
by  James  Wilson  in  estab- 
lishing, 57,  71;  first  consti- 
tutional case  presented  to, 
72;  question  of  jurisdiction 
of,  72-73;  right  to  declare 
a  law  unconstitutional  as- 
serted, 113;  doctrine  estab- 
lished by,  that  Constitution 
does  not  follow  the  flag, 
120;  under  Marshall  as 
chief  justice,  develops  na- 
tional tendencies,  128;  right 
to  declare  a  law  unconstitu- 
tional, 133-135 ;  political 
policies  not  subject  of  de- 
cision by,  136;  "extent"  of 
judicial  power  of,  137;  at- 
tempt of,  in  Dred  Scott 
decision,  to  settle  the  slavery 
question,  215 


Tariff,  of  1832  reasserts  prin- 
ciple of  protection,  178;  Web- 
ster's opposition  to  a  protec- 
tive, 171;  change  in  Webster's 
attitude  toward  the,  172 


Index 


399 


Territories,  power  of  Congress 
over  slavery  in  the,  213; 
thrown  open  to  slavery,  214 

Texas,  annexation  of,  173 

Thirteenth  Amendment,  abol- 
ished slavery,  226,  246 

Trust,  a  controlling  factor  in 
modern  industrial  vi^orld,  265 


U 


Union,  sought  by  colonists  to 
throw  off  oppression,  7;  re- 
vision of  the  government  of 
the,  recommended  by  the 
Annapolis  convention,  9;  ef- 
fect upon,  of  New  York's 
adoption  of  the  Constitution, 
42;  Hamilton's  view  of  the 
nature  of  the,  42  ff ;  su- 
premacy of,  settled  by  the 
Civil  War,  74;  Wilson's  view 
of  the  nature  of  the,  56,  64, 
69,  73;  Jefferson's  view  of, 
96;  Madison's  view  of,  114 
ff;  not  a  mere  league,  117; 
Jackson's  proclamation  in 
defence  of,  162;  liberty  and, 
inseparable,  176;  preserva- 
tion of  the,  sought  by  Cal- 
houn through  Nullification, 
199;  preservation  of  the, 
became  chief  concern  of 
Lincoln,  220;  seceding  States 
never  out  of  the,  242 

United  States  v.  Fisher,  141 


V 


Venezuela,  Pacific  blockade  of 
ports  of,  263 

Virginia  plan,  centre  of  the 
struggle  between  the  large 
and  the  small  States,  15,  39; 
presented  to  the  Constitu- 
tional Convention  by  Ran- 
dolph, 15;  equality  of  States 
abolished  by,  15;  reported 
by  Committee  of  the  Whole 
and  adopted  by  the  Conven- 
tion, 63 

[Virginia  Resolutions,  50,  95, 
96,  133,  139,  171,  176,  180; 


Madison  said  they  advocated 
natural  right  of  revolution, 
98;  drafted  by  Madison,  113; 
views  of,  advanced  in  Rich- 
mond Enquirer,  139;  claimed 
as  lawful  source  of  Nulli- 
fication, 195;  text,  332  ff 

W 

War  of  1812,  forced  upon 
Madison,  120;  nationalizing 
effects,  120-121,  129,  171; 
opposition  to,  secured  Web- 
ster's election  to  Thirteenth 
Congress,  171 

Washington,  saw  need  of  com- 
mon commercial  regulations, 
8;  chosen  presiding  officer  of 
the  Constitutional  Conven- 
tion, 11;  attended  first  of 
Wilson's  lectures,  66;  ap- 
pointed commander-in-chief, 
83;  desired  neutrality,  95 

Webster,  Daniel,  advocate  in 
Dartmouth  College  Case, 
144;  wished  to  test  the 
strength  of  Federal  Govern- 
ment against  South  Caro- 
lina, 163;  chronology,  168; 
attitude  of  his  generation 
toward  the  Constitution, 
169;  voiced  the  growing  na- 
tional sentiment,  170,  177; 
sketch  of  his  life,  171;  op- 
position to  protective  tariff 
and  to  the  War  of  1812,  171; 
career  contrasted  with  Cal- 
houn's, 171;  opposed  "  Tariff 
of  1824  "  and  supported  the 
"  Tariff  of  Abominations " 
in  1828,  172;  grew  up  in  a 
Federalist  atmosphere,  173; 
part  in  Dartmouth  College 
Case,  174-175;  reply  to 
Hayne,  175  ff ;  seeks  chief 
argument  in  provisions  of 
Constitution  itself,  178;  re- 
ply to  Calhoun,  179  ff; 
strength  and  weakness  of 
his  argument,  180;  denies 
right  of  Nullification,  183; 
regards  Federal  Government 


400 


Index 


Webster,  Daniel — Continued 
as  final  and  conclusive  judge 
of  its  own  powers,  183;  de- 
fends the  Bank,  195;  joins 
in  passing  the  Resolution  of 
Censure  upon  Jackson,  185; 
condemned  slavery  but  was 
not  an  abolitionist,  186;  op- 
posed compromise  in  1832, 
but  favored  it  in  1850,  186; 
desired  always  to  preserve 
the  Union,  186 

West,  need  of  expansion  to- 
ward, foreseen  in  the  Con- 
stitutional Convention,  19; 
political  ideas  of  the,  tri- 
umph over  the  East,  160; 
attitude  of  the,  toward  the 
Union,  184;  eager  for  the 
War  of  1812,  192 

West  Virginia,  admission  of, 
240-241 

Whigs,  led  by  Clay,  158;  led 
by  Thaddeus  Stevens,  233 

Whitney,  influence  of  cotton- 
gin  on  slavery,  22 

Wilkinson,  General,  154 

Wilson,  James,  delegate  to 
Constitutional  Convention, 
11;  favors  the  Virginia  plan, 
15,  16;  defended  admission 
of  new  States  on  terms  of 
equality  with  the  older 
States,  19;  opposes  admis- 
sion of  blacks  at  three-fifths 
ratio,  21;  chronology,  54; 
conception  of  a  federal  State, 
56,  69;  part  in  establishing 
position  of  Supreme  Court, 
57;  reasons  why  he  is  not 
better  known,  57-58;  sketch 
of  his  life,  58  ff;  service  in 
Continental  Congress,  59;  in 
Constitutional  Convention, 
59,  60;  on  Supreme  Court 
Bench,  59;  professor  of  law 
59;  conception  of  law,  60 
believer  in  democracy,  61 
advocated  direct  election  of 
Executive  and  both  branches 


of  Congress,  61-62;  opposed 
equality  of  representation  in 
Senate,  62-63;  advocates  the 
Virginia  plan,  63;  tenacious 
of  idea  of  preserving  the 
States,  64;  perceived  true 
nature  of  Federal  State, 
64;  opposed  election  of  mem- 
bers of  second  branch  of  the 
legislative  body  by  the  State 
legislatures,  64;  twofold  re- 
lation of  citizens  under  the 
proposed  form  of  Union,  64; 
stood  for  strong  national 
state,  65 ;  lectures  on  law 
and  the  Constitution,  65  ff; 
conception  of  society,  66~ 
67;  distinguishes  between  so- 
ciety and  government,  68; 
idea  of  sovereignty,  68;  re- 
gards United  States  as  form- 
ing one  nation,  69,  73;  con- 
stitution not  founded  upon 
compact,  but  upon  the  power 
of  the  people,  70;  anticipates 
Marshall,  71 ;  believed  in  in- 
herent powers  of  United 
States  as  a  sovereign  na- 
tion, 72;  decision  in  Chis- 
holm  V.  Georgia,  73;  signer 
of  Declaration  of  Indepen- 
dence, 74;  guide  for  Roose- 
velt's political  actions,  75; 
idea  of  government  con- 
trasted with  that  of  Hamil- 
ton and  Jefferson,  80 
Wythe,  George,  delegate,  to 
Constitutional  Convention, 
11;  Jefferson  studied  law 
under,  81 

X 

X  Y  Z  letters,  131 

Y 

Yates,  delegate  from  New  York 
to  Constitutional  Convention, 
38;  left  the  Convention,  38 


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